THE GOYERNMENTS OF 
FEANCE, ITALY, AND GERMANY 



BY 



A. LAWRENCE LOWELL, LL.D., Ph.D. 

President of Harvard University 




CAMBEIDGE 
HARVARD UNIVERSITY PRESS 

LONDON: HUMPHREY MILFORD 
OXFORD UNIVERSITY PRESS 

1914 



r s\ 



COPYRIGHT, 1896, I914, BY A. LAWRENCE LOWELL 



NOV 23 1914 

©CI.A388560 



PREFACE 

This volume is an abridgment of the author's 
Governments and Parties in Continental Europe, 
published in 1897. It has been prepared in order 
that certain portions of the latter, particularly those 
dealing with the framework of government in France, 
Italy and Germany, may be more easily used in college 
classes. 

Some changes have been made in the text, but only 
where the legislation of the last seventeen years has 
changed the actual machinery of government. Matters 
of opinion are left as they were in the original edition. 



CONTENTS 



CHAPTER I 

FRANCE : INSTITUTIONS 

PA8B 

Origin and nature of parliamentary government in England . . 2 

The system imperfectly copied on the Continent ... 6 

The French constitutional laws ....... 7 

History of their creation . , 8 

The method of amendment 12 

Their legal and moral effect ....... 13 

V The Chamber of Deputies 14 

V The method of election, scrutin de liste and scrutin d'arrondisse- 

ment ........... 15 

The Chamber a tumultuous body . o .... 18 

'' The Senate . 19 

Its functions and actual influence 21/ 

The ministers as a rule not responsible to it . . . . 22 

The National Assembly 26 

' The President of the Republic 26 

V His functions 27 

■ His powers really exercised by responsible ministers . . 28 

The Council of State ......... 30 

The ministers 32 

\y^ Their responsibility to the Chamber of Deputies . . .33 
Their enormojjs^jjower (which is due to the four following mat- 
ters) 7' "'. '. 33 

The paternal nature of the government ...... 34 

The centralization of local government ...... 36 

The department, with its prefect and general council . . 36 

The arrondissement and the canton ..... 40 

The commune, with its mayor and communal council . .40 

Paris and Lyons ......... 42 

The legislative powers of the executive 43 

Ordinances and appropriations . . . e s • 44 



CONTENTS V 

The judicial powers of the executive '^7 

Difference between English and French history ... 47 
In England the royal power grew early and took a judicial 

form . 48 

In France it developed late and took an administrative form 61 

Effect of the doctrine of the separation of powers ... 54 
Questions of the legality of official acts withdrawn from the 

ordinary courts ...•••••"'' 

The administrative courts and the court of conflicts . 67 

The state of siege • • • ^3 

Effect of the French system on the position of the ministers . 64 

Note on Gneist's views on English and French history . . . 65 

CHAPTER II 



FRANCE : PARTIES 



69 
70 
72 
74 
76 
76 
81 
82 
84 
87 

90 
93 



The influence of parties in popular government . 

The parliamentary system normally produces two parties 

It cannot work well otherwise .... 

In France there are many parties or groups 
Causes of the subdivision of parties .... 

Lack of a political consensus 

Theoretical character of French political opinions . 
Lack of the habit of political organization 
The election of the deputies by majority vote 
The system of committees in the Chambers .... 
This undermines the authority of the cabinet and its ability 

to hold the majority together 

"The use of interpellations 

This has a similar effect 9* 

It is due to jealousy of the ministers 

Results of the subdivision of parties 

A change of ministry does not mean change of party 

The cabinets short-lived 

As a rule they are coalitions and therefore weak 

They must confer favors on the deputies to win votes . 

The deputies in turn must curry favor with the local nominating 

committees and the constituents • 

Prospects of the Republic 

Since the Revolution there has been no change of the party in 

power without a revolution 114: 

Possible organic changes 



100 
103 
103 
104 
105 
106 

108 
113 



117 



vi CONTENTS 

CHAPTER III 

ITALY : INSTITUTIONS 

i The formation of the kingdom 120 

The Statuto 122 

The King 126 

''"•■'■' The ministers 127 

^, The Senate 128 

^ The Chamber of Deputies 130 

The franchise, the method of election, etc. .... 131 

The administrative system 135 

The ordinance power 139 

The civil service ......... 140 

Local government .......... 142 

The judicial system 144 

The courts and the officials 145 

Administrative law and the administrative courts .• . . 147 

Weakness of the judicial system .... . . 150 

The church 152 

The doctrine of a free church in a free state .... 153 

The monastic orders . 155 

The Pope, and the law of the Papal Guarantees . . . 157 

Embarrassing situation of the Vatican 159 

CHAPTER IV 

GERMANY : THE STRUCTURE OF THE EMPIRE 

The Holy Roman Empire ... .... 164 

The growth of Prussia 165 

The Germanic Confederation and the Diet 166 

The failure of the Liberal attempt at union in 1848-49 . . 168 

Bismarck and the war of 1866 171 

The North German Confederation and the Empire . . . 172 
The constitution .......... 174 

Nature of the federal union ........ 175 

Legislative centralization and executive decentralization . . 175 
Inequality of rights among the members .... 178 

The privileges of Prussia 178 

The privileges of the other states 181 

The Reichstag : its composition 184 

Its powers 188 



CONTENTS 



Vll 



The Bundesrath : its composition 

Its character and the position of the members 

Its internal organization ....... 

Its powers and privileges 

Its actual influence 

The Emperor . 

Interlacing of his powers as Emperor and as King of Prussia 
The Chancellor 

He is not responsible to the Reichstag .... 

His functions and substitutes 

The judicial system : The Reichsgericht 

Power of the courts to hold statutes unconstitutional 
General character of the federal system 



191 
194 
197 
199 
204 
205 
207 
208 
210 
211 
213 
214 
216 



THE GOVERNMENTS OF 
FRANCE, ITALY, AND GERMANY 

FRANCE 



THE GOVERNMENTS OF 
FRANCE, ITALY, AND GERMANY 



CHAPTER I. 

FRAlfCE : INSTITUTIONS. 



In order to understand the government of a country 
it is not enough to know the bare structure of its insti- 
tutions. It is necessary to follow the course of politics ; 
to inquire how far the various pubHc bodies exercise the 
authority legally vested in them ; and to try to discover 
the real sources of power. It is necessary, in short, to 
study the actual working of the system ; and although 
this depends chiefly upon the character, the habits, and 
the traditions of the people, it is also influenced in no 
small measure by details, like the method of voting, the 
procedure in the legislative chambers, and other mat- 
ters, that are too often overlooked on account of their 
apparent insignificance. Now in several of the states 
on the Continent of Europe the main features of repre- 
sentative government have been copied directly or indi- 
rectly from English models, while the details have grown 
up of themselves, or are a survival from earlier tradi- 
tion. It is not surprising, therefore, that the two are 



2 FRANCE. 

more or less inconsistent with each other, and that this 
want of harmony has had a pronounced effect on pubHc 
life. 

Although most people to-day are familiar with the 
ParUament- parHameutary system of government as it has 
^ITn''''' developed in England, it may not be out of 
England. place to givc a brief description of it here on 
account of the profound influence it has had in other 
countries. 

The Middle Ages gave birth to two political ideas. 
The first of these was a division of the people into 
separate classes or estates, each of which had independ- 
ent political functions of its own. The second was 
representative government, or the election — by those 
estates whose members were too numerous to assemble 
in a body — of deputies authorized to meet together 
and act for the whole estate. The number of these 
estates, and the number of separate chambers in which 
their representatives sat, varied in the different coun- 
tries of Europe ; ^ but it so happened that in England 
aU the political power of the estates became in time 
vested in two chambers.^ One of them, the House of 
Lords, contained the whole body of peers, who were the 

1 Thus in France, and in most continental countries, there were three, 
while in Sweden there were four : the clergy, the nobles, the cities, and 
the peasants. The existence of only two Houses in England might almost 
be called an accident. (Cf . Freeman, Growth of the English Constitution^ 
p. 93.) 

2 In 1664 Convocation, which was the ecclesiastical chamber, discon-. 
tinned the practice of voting separate taxes on the clergy, and thus the 
clergy definitely ceased to be an estate of the realm. (See Hallaniy 
Const. Hist, of England^ chap, xvi.) 



ORIGIN OF PAELIAMENTARY GOVERNMENT. 3 

successors of the great feudal vassals of the Crown ; 
while the other, the House of Commons, was composed 
of the deputies from the towns and counties, who had 
gradually consolidated into a single house, and might 
be said to represent all the people who were not peers. 

By degrees the House of Commons acquired the 
right of originating all bills for raising or spending 
money, and hence its support became essential to the 
Crown. But its members were independent, and on 
the whole less open to court influence than the peers. 
They felt under no obligation to support the policy of 
the government, or to vote an appropriation unless they 
understood and approved the purpose for which it was 
to be used; and King William III., during his wars 
with France, found them by no means as easy to man- 
age as he could wish. Hitherto his ministers had been 
selected from both political parties, and hence were not 
in harmony with each other, and were unable to exert 
an effective influence in Parliament ; but between 1693 
and 1696 he dismissed the Tories, and confided all the 
great offices of state to the Whigs, who had a majority 
in the Commons. The result was that the House which 
had been turbulent became docile; and the ministers 
by winning its confidence were able to guide it, and 
obtain the appropriations that were required. This was 
the origin of the practice of selecting the ministers from 
the leaders of the majority in Parliament, — a practice 
which at a later time crystaUized into a principle of the 
British Constitution.* But of course men who held 
the most important offices, and at the same time led the 

1 Macaulay, History of England^ chap. xx. 



4 FRANCE. 

House of Commons, were certain not to be mere toola 
in the hands of the King. They were sure to try to 
carry out their own policy, and when the sceptre of 
William had passed into the hands of the first two 
Georges, who were foreigners and took little interest in 
EngHsh politics, the ministers exercised the royal power 
as they pleased, and became in fact the custodians of 
the prerogatives of the Crown. The subordination of 
the King to his ministers is, indeed, the inevitable re- 
sult of the system ; for so long as the latter retain their 
influence over the House, and can direct its votes, they 
can hold their offices and administer them according to 
their own views. If the King attempts to dismiss them 
they can block the wheels of government, by inducing 
Parliament to withhold supplies ; and if, on the other 
hand, they cease to be the leaders of the House, and 
a different party with new leaders gets a majority, the 
King finds himself obliged to send for these and intrust 
the government to them. The system which had been 
devised in order that the King might control the House 
of Commons became, therefore, the means by which the 
House of Commons, through its leaders, controlled the 
King, and thus all the power of the House of Commons 
and of the Crown became vested in the same men, who 
guided legislation and took charge of the administration 
at the same time. 

The House of Lords, meanwhile, was losing ground. 
It had no right to initiate or amend money bills, and, 
what was far more important, it had no influence on the 
formation or the policy of the cabinet. The ministers 
were, indeed, often peers, but they were not selected 



NATURE OF PARLIAMENTARY GOVERNMENT. 5 

because they belonged to the majority in the House of 
Lords, nor did they resign when that body voted against 
them. Like their colleagues from the other House, they 
represented the majority in the Commons, and were 
solidly in accord with it. The House of Lords, there- 
fore, found itself confronted by the combined power of 
the Crown and the House of Commons, and this it was 
unable to resist. In fact the power to create new peers 
furnished the Crown, or rather the ministers acting in 
its name, with a weapon always ready to break an 
obstinate resistance, and at the time of the Reform Bill 
of 1832 a threat of this kind was enough to compel 
submission. The Upper House has thus gradually lost 
authority, until now it does not venture to reject any 
measure on which the cabinet is really in earnest, — 
unless perchance, as in the case of the recent Home 
Rule bill, it is convinced that the House of Commons 
does not fairly represent the people, and that a new 
election would result in a victory for the party in oppo- 
sition. In such a case the refusal to pass the measure 
is tantamount to a demand for a Referendum.^ 

The ministers remain in office only so long as they 
continue to be the leaders of the Lower House and are 
able to control the majority. When this condition has 
changed, a vote is sometimes passed to the effect that 
the ministers have ceased to possess the confidence of 
the House ; but such an express declaration is rarely used 

^ It is a curious fact that the Premier of New South Wales has recently 
proposed to prevent deadlocks between the Houses by providing that 
after a bill has been rejected once by the Legislative Council and again 
passed by the Assembly, the Council shall not have power to reject it a 
second time, but may require it to be submitted to popular vote. A sim- 
ilar proposal has been discussed iu Belgium. 



6 FRANCE. 

at the present day, and a hostile vote on any matter ol 
considerable importance is treated as a proof that the 
government has no longer the support of a majority. 
After such a vote, therefore, the ministers resign, and 
if there is a normal division into two parties the Crown 
sends for the leader of the opposition, and intrusts him 
with the formation of a cabinet. The defeated minis- 
ters have, however, one other alternative. If they think 
that the House of Commons has ceased to be in har- 
mony with the opinion of the nation, they can dissolve 
Parhament in the name of the Crown, and try the 
chance of a new election. Thus in the English parlia- 
mentary system the direction of the legislature, and the 
control of the executive, is in the hands of the leaders 
of the majority in the House of Commons. For their 
exercise of power these leaders are directly responsi- 
ble to the House of Commons, which can call them to 
account at any time ; while the House itself is responsi- 
ble to the people, which gives its verdict whenever the 
end of the term of Parliament or a dissolution brings 
about a general election. 

Turning now from the consideration of English forms 
Parliament- ^^ govcmment to tliosc in use on the Con- 
menro^n the tiucnt, wc find that the main features of the 
Continent, gpi^ig}^ Coustitutiou havc bccu vcry generally 
imitated. In fact, the plan of two chambers, one of 
which issues from an extended suffrage and has the 
primary control of the purse, and of a cabinet whose 
members appear in the chambers and are jointly respon- 
sible to the more popular one, so that all the ministers 
resign on an adverse vote of that chamber, is of Eng- 



ENGLISH SYSTEM IMPERFECTLY COPIED. 7 

lish or-igin, and has spread widely over Europe. These 
features of the parliamentary system are striking, and 
have become famous, while the procedure in the House 
of Commons, which enables the system to work smoothly, 
has attracted far less attention, and has been followed 
very little. This is peculiarly true of France, where the 
principle of cabinet responsibility has been adopted to 
the fullest extent, but where there exist at the same 
time several practices that help to twist parliamentary 
government out of the normal form. More curious still 
is the fact that these very practices have been blindly 
copied by other countries which intended to imitate the 
English system. 

A description of the French government must begin 
with its structure, with the legal composition OutHne of 
and powers of the different political bodies. secoShap^ 
This will occupy the present chapter. In the ^^^' 
next, the actual working of the system will be consid- 
ered, especially in regard to the character of poHtical 
parties ; and an attempt will be made to explain the 
peculiarities that are found by a reference to the condi- 
tion of the people, and to those parts of the poHtical 
machinery that seem to have a marked effect. In other 
words, we shall begin with the skeleton, and then take 
up the muscles and nerves. 

The first thing one looks for in a modern government 
is the constitution ; but althoug-h the French 

. . . The French 

Republic has a constitution, it differs in two Constitu- 
very important respects from those to which 
we are accustomed. It is not comprised in any one 
document, but in a series of distinct laws, and it 



8 FRANCE. 

contains few provisions limiting the functions of the 
different bodies, or prescribing fundamental rights 
which the state is enjoined to respect. This is a depart- 
ure not only from American, but also from the earher 
French usage, for previous constitutions in France have 
been long documents and have contained elaborate 
bills of rights ; although the absence of practical guar- 
antees has made their effectiveness depend upon the 
good pleasure of the government. The present consti- 
tution is very different, and barely provides for the 
organization of the powers of the state, without even 
speaking of such important matters as a yearly budget 
or the tenure of office of the judges. It does Httle 
more than establish the main framework of the govern- 
ment by declaring what the chief organs of public life 
shall be, leaving them almost entirely free to exercise 
their authority as they see fit. The reason for such a 
departure from French traditions is to be found in the 
circumstances of the case. The earlier constitutions in 
France were attempts to frame an ideal system, but the 
present one resulted from an immediate need of pro- 
viding a regular government of some sort that could 
rule the country for the time, and was drawn up by 
men who had no behef in its inherent perfection. To 
understand this it is necessary to glance at the history 
of the period. 

The rapid series of defeats suffered by the French 
History of armics at the hands of the Germans, in 1870, 
its creation, destroyed the tottering authority of the 
empire, and as soon as the news of the surrender of 
Napoleon III. at Sedan reached Paris an insurrection 



THE CONSTITUTION. 9 

broke out on the fourth of September. The republic 
was at once proclaimed, but this was no time to debate 
plans for a constitution, and so long as the war lasted 
the country was ruled by the self -elected Government 
of the National Defense. When the war was over, a 
National Assembly with indefinite powers was chosen 
by universal suffrage. The member of this body who 
commanded the most general public confidence was 
Thiers, the historian, and former minister of Louis 
Phihppe. To him the Assembly intrusted the execu- 
tive power, and in August, 1871, it gave him the title 
of President, without, however, fixing any term for the 
duration of the of&ce. Thiers was constantly urged 
to introduce the parliamentary system by allowing his 
ministers to assume the responsibihty for his acts, but 
this he refused to do, saying that the position in which 
it would place him, although perfectly consistent with 
the dignity of an hereditary king, was for him, a little 
hourgeois, entirely out of the question.^ He held him- 
self, however, personally responsible to the Assembly 
for the conduct of his government, took part in the 
debates on the measures he proposed, and declared that 
he was ready to resign at any time, i£ the majority 
wanted him to do so.^ This state of things continued 

* The law of Aug. 31, 1871, declared that the President as well as the 
ministers should be responsible to the Assembly. See Dupriez, Les Mi^ 
nistres dans les Principaux Pays d' Europe et d"" Amerique, vol. ii. p. 320. 

2 The law of March 13, 1873, abolished the right of the President tt 
take part in debate, and while allowing him to address the Assembly^ 
ordered the sitting to be suspended immediately after his speech. Thi^ 
was, of course, an attempt to reduce the personal influenca of Thier^ 
(Dupriez, vol. ii. pp. 321-22.) 



10 FRANCE. 

for nearly two years, when a hostile vote forced Thiers 
to retire. His successor, Marshal MacMahon, was 
elected for a term of seven years, and as the new 
President was not a member of the Assembly, his cabi- 
net became responsible in the parliamentary sense. 
But although the chief magistrate now held office for 
a fixed period, and was freed from the caprices of an 
uncertain majority, still there was no constitution and 
no permanent organization of the government. The 
situation was, in fact, a provisional one, prolonged ab- 
normally by the strange condition of politics. The 
monarchists formed a majority of the Assembly, but 
they were hopelessly divided into two sections, — the 
Legitimists, whose candidate was the Comte de Cham- 
bord, and the Orleanists, who followed the Comte de 
Paris. At one moment it seemed not impossible that 
the Comte de Chambord might become king, and some 
of his supporters opened negotiations for the purpose ; 
but these were brought to nothing by obstinacy of the 
Prince himself, who was a true scion of his race, and 
would not yield one jot of his pretensions. He even 
refused to accept the tricolor flag that means so much 
to Frenchmen, and clung doggedly to the ancient white 
standard of his house. Under such circumstances, a 
monarchy was out of the question, and so this assembly 
The Constitu- ^^ mouarchists at last set to work to organize 
tionai Laws, g^ republic J or rather a sufficient number of 
monarchists, feeling that a republic was, for the time 
at least, inevitable, joined with the minority to estab- 
lish a government on the only basis possible.^ But 

1. Very good brief descriptions of the formation of the Constitution 



THE CONSTITUTION. 11 

although the republican form was adopted, the institu- 
tions that were set up departed essentially from the 
ideas which the French had been accustomed to asso- 
ciate with that term. The present government, like 
all political systems that have been created suddenly 
and have proved lasting, was essentially a compromise. 
From the French repubHcan principles there was bor- 
rowed, besides the name, little more than the election of 
the chief magistrate, while from the traditions of con- 
stitutional monarchy were taken the irresponsibility of 
the head of the state, and the existence of a second 
legislative chamber.^ Now it was natural that no one 
should feel inchned to construct an ideal system on a 
hybrid foundation of this kind. Moreover none of the 
parties regarded the work of the Assembly as final, for 
the monarchists looked forward to a future restoration 
of the throne, while their adversaries hoped to place 
the republic before long on a more secure and perma- 
nent footing. Hence the Assembly did no more than 
provide for the immediate organization of the govern- 
ment in as brief and practical a manner as possible. It 
passed three constitutional laws, as they are called, 
which are in the form of ordinary statutes, and very 

may be found in Bozdrlan's Etude sur la Revision de la Constitution, and 
in Professor Currier's Constitutional and Organic Laws of France. The 
latter, published as a supplement to the Annals of the American Academy 
of Political Science (March, 1893), gives a translation into English of all 
these laws. See also an article by Saleilles on the " Development of the 
Present Constitution of France." (^Ann. Amer. Acad, of Pol. Sci., July, 
1895.) 

^ Lebon, Frankreich (in Marquardseu's HandhucTi des Oeffentlichen 
Bechts), p. 19. 



12 FRANCE. 

short and concise. One of them, that of February 25, 
1875, provides for the organization of the powers of 
the state. Another, that of February 24, 1875, deals in 
erreater detail with the orgcanization of the Senate. And 
the third, dated July 16, 1875, fixes the relations of 
the powers of the state among themselves. 

The provisional character of the constitution is clearly 
Amend- SG&T^ in the method of amendment. It has 
ments. hccn the habit in France to make a sharp dis- 

tinction between the constituent and legislative powers, 
the former being withdrawn to a greater or less extent 
from the control of the Parliament. But in this in- 
stance both of the great parties wanted to facilitate 
changes in the fundamental laws, in order to be able to 
carry out their own plans whenever a favorable occasion 
might present itself.^ A departure from tradition was 
therefore made, and it was provided that the constitu- 
tional laws could be amended by a National Assembly, 
or Congress, composed of the two branches of Parlia- 
ment sitting together, which should meet for this pur- 
pose whenever both chambers on their own motion, or 
on that of the President of the Republic, declared the 
need of revision.^ The constitutional laws have been 



^ Cf . Borgeaud, Eiahlissement et Revision des Constitutions, pt. iii. liv. zL 
ch. viii. 

2 Const. Law of Feb. 25, 1875, Art. 8. It is not provided whether the 
Chambers shall declare in general terms that there is a need of revision, 
or whether they shall specify the revision to be made, and this point has 
given rise to lively debates; but on the two occasions when a revision was 
actually undertaken, the Chambers passed identical resolutions specifying 
the articles to be amended. (Lebon, Frankreichy pp. 74, 75 ; Saleilles, op. 
cit. pp. 6, 7, 9.) 



THE CONSTITUTION. 13 

twice amended in this way. On the first occasion 
(June 21, 1879), the provision making Versailles the 
capital was repealed, and thereupon a statute was 
passed transferring the seat of government to Paris.^ 
On the second occasion (August 14, 1884), several 
amendments were made. Among these one of the 
most notable changed the provisions relating to the 
mode of electing senators, and another declared that 
the repubhcan form of government cannot be made the 
subject of proposal for revision, — the object of the 
latter being to prevent the destruction of the RepubHc 
by constitutional means. The device of providing that 
a law shall never be repealed is an old one, but I am 
not aware that it has ever been of any avail. 

This method of amendment has virtually rendered 
the Parliament omnipotent, for excepting the provision 
about changing the republican form of government, 
there is no restriction on its authority. The Chambers 
cannot, it is true, pass an amendment to the consti- 
tutional laws in the form of an ordinary statute, but 
if they are agreed they can pass it by meeting as a 
National Assembly. The power of the Chambers is 
therefore nearly as absolute as that of the British Par- 
liament.^ The principle, moreover, that the funda- 
mental law cannot be changed by ordinary statute is 
devoid of legal sanction, for if the Chambers should 
choose to pass an act of this kind, no court or official 
could legally prevent its appKcation.^ But while the 

* Law of July 22, 1879. This act provides, however, that the National 
Assembly shall meet at Versailles. 
^ Cf. Saleilles, op. cit., p. 11. 
^ Cf. Laferrifere, Traite de la Jurisdiction Administrative, vol. ii. p. 5. 



14 FRANCE. 

constitution imposes no legal restraint on tlie Parlia- 
ment, it would be a great mistake to suppose that it 
had no effect. On the contrary, it has such moral force 
that any attempt to pass a statute that clearly violated 
its terms would awake a strong repugnance ; and indeed 
a suggestion by the president of one or other of the 
Chambers that a bill would be unconstitutional has more 
than once sufficed to prevent its introduction.^ On the 
other hand, the fact that formal amendments can be 
made only in joint session, and only after both Chambers 
have resolved that there is a need of revision, has some 
influence in preventing changes in the text of the 
constitutional laws, because the Senate, being the more 
conservative body, and only half as large as the other 
House, is timid about going into joint session, not 
knowing what radical amendments may be proposed 
there, and fearing to be swamped by the votes of the 
deputies. 

Let us now examine the organs of the state in 
succession, taking up first the Parliament with its two 
branches, the Senate and the Chamber of Deputies ; 
then turning to the President as the chief magistrate of 
the Republic, and finally passing to the ministers as the 
connecting link between the Parliament and the Presi- 
dent, and the controlling factor in the machinery of the 
state. 

The composition of the Chamber of Deputies is left to 
ordinary legislation, except that the constitu- 

The Cham- . o-ni nr'-iorrr'A 

berof Depu- tional law 01 February 25, 1875, Art. 1, pro- 
vides for its election by universal suffrage. By 

1 Lebon, Frankreich, p. 23. * 



THE CHAMBER OF DEPUTIES. 15 

statute the ballot is secret, and the franchise extends to 
all men over twenty-one years of age who have not been 
deprived of the right to vote in consequence of a con- 
viction for crime, and who are not bankrupts, under 
guardianship, or in active military or naval service.^ To 
be eligible a candidate must be twenty-five years old 
and not disquaHfied from being a voter.^ Members of 
families that have ever reigned in France are, however, 
excluded;^ and in order to prevent as far as possible 
the use of pressure the law forbids almost every state 
official to be a candidate in a district where his position 
might enable him to influence the election.^ As a fur- 
ther safeguard against the power of the administration, 
which is justly dreaded by the French Liberals, it is 
provided that all public servants who receive salaries, 
except a few of the highest in rank, shall lose their 
offices if they accept an election to Parliament, and that 
a deputy who is appointed even to one of these highest 
offices, unless it be that of minister or under-secretary, 
shall lose his seat.^ 

The Chamber of Deputies is elected for four years, 
and consists at present of five hundred and The method 
ninety-seven members ; ten of the seats being °* election. 
distributed among the various colonies, and six allotted 
to Algiers, while the remaining deputies are chosen in 

1 Arts. 1, 2, and 5 of the Law of Nov. 30, 1875. Poudra et Pierre, 
Droit Parlementaire, sects. 482-84, 498-514. 

2 Law of Nov. 30, 1875, Arts. 6, 7. 

3 Law of June 16, 1885, Art. 4. 

4 Law of Nov. 30, 1875, Art. 12. 

^ Id., Arts. 8, 9, and 11. A deputy appointed to one of these offices 
may, however, be reelected (Art. 11} • 



16 FRANCE. 

France. ^ The method of election has varied from time 
to time between that of single^lectoral dis* 
lis^e and ^ tricts, a system called the scruHn_d[arr on;' 
dWron- dissementy and that of the scrutin de liste, 
which consists in the choice^ all the deputies^ 
from each department on a general ticket^ the difference 
beinof the same that exists between our method of elect- 
ing congressmen each in a separate district, and our 
method of choosing presidential electors on a single ticket 
for the whole State. The scrutin d^arrondissement or 
single district system prevailed from 1876 to 1885, when 
ihe scrutin de liste was revived;^ partly, no doubt, in 
order to swamp the reactionary minority, but also with 
the hope of withdrawing the deputies from the pressure 
of petty local interests, which had become lamentably 
strong, of getting a Chamber of broader and more 
national views, and of forming a Republican majority 
that would be more truly a great and united party. 
The experiment did not last long enough to produce 
any sensible effect of this kind ; and indeed the change 
seems, on the whole, to have resulted in an increase of 
the power of the local politicians, who formed themselves 
into nominating and electoral committees for the depart- 
ment. At the general elections of 1885 the Reaction- 
aries gained rather than lost seats in spite of the scrutin 
de liste; and the disgust of the Republicans with the 
device from which they had hoped so much was brought 
to its height two or three years later, by General Bou- 
langer. This singular man, who, after enjoying a mar- 
velous popularity, became in a short time an object of 

1 Law of Juns 16, 1885. 



THE CHAMBER OF DEPUTIES. IT 

contempt, if not of ridicule, had been minister of war in 
one of the recent Republican cabinets. He was forced 
to resign on account of his enormous expenditure on 
the army, and the fear that he would plunge the nation 
into a war with Germany. He then posed as the saviour 
of the country, and being at the height of his reputa- 
tion he made use of the scrutin de liste to hold a 
plebiscite or pop^ular vote of Prance piecemeal. \ When- 
ever a seat became vacant in a department he siood as 
a candidate, and if elected he held the seat only until 
a vacancy occurred in another department, when he 
resigned to appear as a candidate again. After doing 
this in several large departments he was able to declare 
that a considerable part of the French people had pro- 
nounced themselves on his side — a proceeding which 
would have been impossible if the deputies had been 
elected in five hundred and seventy-six separate dis- 
tricts. His success at the by-elections had so fright- 
ened the Republicans that they restored the scrutin 

_d^arro7tdissement or single electoral districts before the 

.general election of 1889 took place.^ 

Every large body of men, not under strict military 
discipline, has lurking in it the traits of a mob, and 

1 Law of Feb. 13, 1889. In order to frustrate more effectually Bou- 
langer's scheme, a law of July 17, 1889, provided that no one should be 
candidate in more than one district. The meaning and effects of these 
laws is discussed by Saleilles (Ann. Am. Acad. Pol. ScL, July, 1895, pp. 
19-37). A measure providing for the restoration of the scrutin de liste 
with an arrangement for proportional representation passed the Chamber 
of Deputies in 1912. For the arguments in its favor, see " Electoral Ke- 
form in France," by J. W. Garner, American Political Science Review, vii, 
pp. 610-38 (Nov., 1913). 



18 FRANCE. 

is liable to occasional outbreaks when the spirit of dis- 
The Cham- o^^ler becoHies epidemic ; but the French 
muituous Chamber of Deputies is especially tumultuous, 
^°^^' and, in times of great excitement, sometimes 

breaks into a veritable uproar. Even the method of 
preserving order lacks the decorum and dignity that 
one expects in a legislative assembly. The President 
has power to call a refractory member to order and 
impose a penalty in case he persists ; but instead of 
relying on this alone, he often tries to enforce silence 
by caustic remarks. The writer remembers being in 
the Chamber a few years ago when M. Floquet was 
presiding, — the same man who fought a duel with 
General Boulang-er and wounded him in the throat. 
A deputy who had just been speaking kept interrupt- 
ing the member who was addressing the Chamber, and 
when called to order made some remark about parlia- 
mentary practice. The President cried out, " It is not 
according to parliamentary practice for one man to 
speak all the time." " I am not speaking all the time," 
said the deputy. " At this moment you are overbear- 
ing everybody," answered the President. This incident 
is related, not as being unusual or humorous, but as 
a fair sample of what is constantly occurring in the 
Chamber. Even real sarcasm does not seem to be 
thought improper. Thus in a recent debate a deputy, 
in the midst of an unusually long speech, was con- 
tinually interrupted, when the President, Floquet, ex- 
claimed, " Pray be silent, gentlemen. The member 
who is speaking has never before approached so near 
to the question."^ These sallies from the chair are an 

1 Journal Officiel of Nov. 18, 1892. 



THE SENATE. 19 

old tradition in France, although, of course, their use 
depends on the personal character of the President. 
One does not, for example, find them at all in the 
reports of debates during the time Casimir-Perier was 
presiding over the Chamber. When the confusion gets 
beyond all control, and the President is at his wits' 
end, he puts on his hat, and if this does not quell the 
disturbance, he suspends the sitting for an hour in 
order to give time for the excitement to subside. 

The IlfenchSenaLte consists of three hundred mem* y 
bers, and by the constitutional law of Feb- 
ruary 24, 1875, two hundred and twenty-five 
of these were to be elected for nine years by the depart- 
ments, while seventy-five were appointed for life by the 
same National Assembly that framed that law. The 
life senators were intended to be a permanent feature of 
the Senate, and it was provided that when any of them 
died his successor should be elected for life by the Sen- 
ate itself. A few years later, however, the Republi- 
cans, thinking such an institution inconsistent with 
democracy, passed the amendment to the constitutional 
laws, to which a reference has already been made.^ 
This, while leaving untouched the provisions relating 
to the existence and powers of the Senate, took away the 
constitutional character from those regulating the elec- 
tion of senators, which thus became subject to change 
by ordinary legislation. A statute was then passed 
(December 9, 1884) providing that as fast as the life 
senators died their seats should be distributed among 
the departments, so that nowadays all the senators 

1 Const. Law of Aug. 14, 1884. 



^.^ 



20 , t . ^U« , FRANCE. 

alike are elected in ^he same way. There are eighty- 
six departments in Fiance, and the senators are appor- 
tioned by the act amon§ them according to population. 
Since the abolition of l^e senatorships, the number of 
seats belonging to a department varies from two up 
to ten, while the territory d| Belfort, each of the three 
departments of Algiers, and "several of the colonies are 
represented by one senator ap^iece.^ The senators so 
elected hold of&ce for nine ye^s, one_third^^tiring 
every three years.^ They are chjiaaes i^ each depart- 
ment of France by_a^ electoral college compLO&ed^,oi. 
the^ de^gutiesj of thd^ members of the general_cpunciV. 
of thfe^inembers of the councils of the arrondisaements, 
and of delegates chosen by the municipal councils--of- 
the communes of towns.^ Before 1884 each commune 
elected only one delegate,* but by the law of that year 
the number of delegates increases with the size of the 
communes, though much less than in proportion to the 
population. These communal delegates form a large 
majority of the electoral college, and hence the Senate 
was called by Gambetta the Great Council of the Com- 
munes of France.^ 

A senator must be forty years old ; and since the law 
of 1884 the disqualifications for this office have been 
the same as for that of member of the Chamber of 
Deputies.^ 

1 Law of Dec. 9, 1884, Art. 2. 

2 Id., Art. 7. 

3 Id., Art. 6. 

4 Const. Law of Feb. 24, 1875, Art. 4. 
^ Saleilles, op. cit., p. 41. 

^ Law of Dec. 9, 1884, Arts. 4, 5, and Provisions Temporaires. Law 
of Dec. 26, 1887. Lebon, Frankreich, pp. 63, 64, 67. 



THE SENATE. 21 

The legislative power of the Senate and the Chamber 
of Deputies is the same, except that financial itsfunc- 
bills must originate in the latter ; ^ but while *^^°^' 
it is admitted that the Senate may reduce proposals for 
taxes and appropriations, there is a dispute whether it 
can increase them or not, and debates on this point are 
constantly recurring. In practice the Chamber has some- 
times accepted augmentations thus introduced, but more 
frequently the Senate has abandoned them.^ The Senate 
has two peculiar functions. First, its consent is neces- 
sary for a dissolution of the Chamber of Deputies,^ a 
provision designed as a safeguard against the President, 
who might otherwise dissolve the Chamber in order to 
attempt a coup d'etat during its absence ; and, second, 
the President is authorized, with the approval of the 
Council of Ministers, to constitute the Senate a high 
court to try any one for an attempt on the safety of the 
state.* This power was used in the case of General 
Boulanger, who failed to appear for trial, and was con- 
demned in his absence. 

With such an organization and powers, an American 
might suppose that the Senate would be a ^u actual 
more influential body than the Chamber of ™^^^^<^®- 

1 Const. Law of Feb. 24, 1875, Art. 8. 

2 Dupriez, vol. ii. pp. 430-32. 

3 Const. Law of Feb. 25, 1875, Art. 5. 

< Lebon, Frankreich, p. 73, Const. Laws of Feb. 24, 1875, Art. 9, and 
July 16, 1875, Art. 12. The procedure was regulated by a law of Aug. 
10, 1889. By the Const. Law of July 16, 1875, Art, 12, the Chamber of 
Deputies can impeach the ministers, and in case of high treason the 
President of the Republic. The impeachments are tried by the Senate. 
For the interpretation put upon this clause, see Lebon, Frankreich, 
pp. 65^8. 



22 FEANCE. 

Deputies ; but in reality it is by far tlie weaker body 
of the two, although it contains at least as much po- 
litical ability and experience as the other House, and, 
indeed, has as much dignity, and is composed of as 
impressive a body of men as can be found in any 
legislative chamber the world over. The fact is that 
according to the traditions of the parliamentary system 
the cabinet is responsible only to the more popular 
branch of the legislature, and in all but one of the 
instances where a cabinet in France has resigned on an 
adverse vote of the Senate, the vote was rather an 
excuse for the withdrawal of a discredited ministry than 
the cause of its resignation.^ The remaining case, 
which occurred during the year 1896, is the only one 
where the responsibility of the ministers to the Senate 
was fairly raised, and where anything like a real contest 
took place between the chambers. On this occasion the 
Senate did certainly force a united and vigorous cabinet 
to resign, but it was enabled to do so only because the 

^ Dupriez (vol. ii. pp. 453-54) mentions two such cases. One in 1876, 
when the cabinet, disliking a bill for an amnesty passed by the Chamber 
of Deputies, proposed in the Senate a compromise, which the latter, 
averse to any amnesty, rejected. The ministers thereupon resigned, but 
they had really been beaten in the Chamber of Deputies, and their only 
hope of restoring their prestige lay in forcing through the compromise. 
The other case was in 1890, when the Senate by a vote condemning the 
economic policy of the government, brought about a cabinet crisis. But 
the ministry was already divided within itself, and had almost broken in 
pieces a few days before. There appears to have been a third instance of 
the same kind in 1883. In that case the Fallieres ministry resigned 
because the Senate rejected a bill on the expiilsion of members of families 
that had reigned in France, but here again the cabinet was disunited and 
in a feeble condition before the vote in the Senate took place. (Journal 
Officiel, Feb. 18 and 19, 1883.) 



THE SENATE. 23 

majority in the Chamber of Deputies was highly pre- 
carious, for there can be no doubt that if the cabinet 
could have relied on the hearty support of the Chamber 
it would have defied the Senate as it had already done 
two months before.^ It has been only in very excep- 

1 The history of this case may be summarized as follows : The Chamber 
of Deputies when elected contained a decided majority of Conservative 
Kepublicans, and for two years the successive cabinets represented their 
views, but by degrees the party became disintegrated, and in October, 
1895, a Radical cabinet was formed, which succeeded in obtaining the 
support of a majority. Early in the new year the Minister of Justice, 
not being satisfied that the Juge d^ Instruction, who was holding the inquest 
on the southern railroad ffauds, was sufficiently zealous in discovering 
the offenders, took the case out of his hands and intrusted it to another 
magistrate. On February 11, the Senate, which was strongly conserva- 
tive, passed a vote censuring this act as an interference with the course 
of justice. Two days later, the Chamber of Deputies expressed its con- 
fidence in the government ; whereupon the Senate, on February 15, 
repeated its former vote. On the 20th, the matter was again brought up 
in the Chamber of Deputies, and M. Bourgeois, the head of the cabinet, 
declared that he should not resign so long as he was upheld by the 
Chamber, which proceeded to reaffirm its vote of the week before. A 
number of the senators who had been opposed to the cabinet, finding 
that it would not yield, read in the Senate next day a declaration protest- 
ing against the refusal of the ministers to hold themselves responsible to 
the Senate as a violation of the Constitution, but saying that while as 
senators they reserved their constitutional right, they did not wish to 
suspend the legislative life of the country. The Senate thereupon adopted 
an order of the day approving this declaration, and thus virtually gave 
up for a time the attempt to make the ministers responsible to itself. 
(Journal Officiel, Feb. 12, 14, 16, 21, and 22, 1896.) 

A little later the cabinet brought forward a bill for a progressive in- 
come tax, and succeeded on March 26 in getting the Chamber to adopt an 
order of the day approving of the general principal involved. The order, 
however, which was somewhat equivocal, was only carried by sixteen 
votes, and more than half of the deputies were believed to be opposed in 
their hearts to the tax. The Senate thought its opportunity had come, 
and again passed a vote of lack of confidence in the ministry, this time 
on the subject of foreign affairs. (Journal Officiel, April 4.) The result 



24 FRANCE. 

tional cases, that the Upper House has upset the min- 
istry. Moreover the question at issue in the struggle 
of 1896 was not whether the cabinet is responsible to 
the Senate to the same extent that it is to the Chamber, 
but simply whether the Senate can insist on the removal 
of a ministry to which it is peculiarly hostile. No one 
has ever doubted that under ordinary circumstances the 
ministers are responsible only to the Chamber. The 
majority in that body alone is considered in the forma- 
tion of a cabinet, and an unfavorable vote there on any 
current matter of importance is followed by a change 
of ministers, while a similar vote in the Senate is not 
regarded as a reason for resignation.^ 

was no better than before, but the Senate felt the strength of its position, 
and was not to be ignored. On April 21, therefore, it took a bolder step 
by a resolution to postpone the vote on the credits asked for Madagascar 
"until it had before it a constitutional ministry having the confidence of 
the two Chambers." Instead of trying to continue the fight Bourgeois 
resigned, declaring to the Chamber of Deputies that as the representa- 
tive of universal suffrage it ought to be supreme, but that, owing to the 
impossibility of insuring proper military service in Madagascar after the 
vote of the Senate, patriotism obliged him to withdraw. The Radicals 
in the Chamber succeeded in carrying a vote affirming once more the 
preponderance of the elect of universal suffrage, and urging the need of 
democratic reforms ; but a few days later a purely Conservative cabinet 
presented itself to the Chamber, and obtained a vote of confidence by a 
majority of forty-three. (Journal Officiel, April 22, 24, and May 1.) 

The outcome of the affair justified the belief that the Chamber would 
not engage in a prolonged struggle to support the cabinet ; that while 
unwilling to turn the ministers out itself, it would not be sorry to 
have the Senate do so. Had the deputies been so thoroughly in 
earnest as to force a deadlock between the Chambers, the Senate could 
not have refused its consent to a dissolution, and would certainly have 
been obliged to give way if the elections had resulted in a victory for the 
cabinet. 

1 Since this was written the Briand ministry resigned on a vote in the 
Senate in March, 1913. 



THE SENATE. 25 

As a rule the Senate does not decide the fate of the 
ministries, and hence cannot control their policy. The 
result is that without sinking to the helplessness of the 
English House of Lords, it has become a body of sec- 
ondary importance.^ At one time it stood very low 
in public esteem, on account of its origin ; for it was 
created by the Reactionaries in the National Assembly, 
and was regarded as a monarchical institution ; and even 
after the greater part of its seats were occupied by Re- 
publicans, it was suspected of being only half-heartedly 
in favor of the republican form of government. Its 
condemnation of Boulanger increased its popularity 
by making it appear a real bulwark of the Republic 
against the would-be dictator; but the prejudice 
against it has by no means disappeared, and the ex- 
treme Radicals have never ceased to demand its abo- 
lition, although conservative feeling in France will 
doubtless remain strong enough to prevent such a 
step. How great the influence of the Senate will be 
in the future is not easy to foretell. Some people 
were of opinion that with life members gone, many 
of whom had been distinguished in letters, in science, 
or in war, it would lose a good deal of its prestige. 
To some extent this fear has been realized. But, on 
the other hand, men of mark are still elected, and 
now that the Senate is not afraid of being thought 
lukewarm or hostile to the Republic, and does not feel 

1 In his Essays on Government (chap, i) the writer has tried to prove 
that this must necessarily be the condition of one of two chambers wher- 
ever the cabinet is responsible to the other ; and that the cabinet cannot 
in the long run be responsible to both. 



26 FRANCE. 

its existence seriously threatened, it has acquired more 
boldness and energy.^ It is highly improbable, more- 
over, that it will become utterly powerless, so long as 
the deputies are divided into a number of political 
groups, and the ministers are not able to speak with 
authority as the leaders of a great and united party,. 

Although the Senate has little or no share in directing 
the policy of the cabinet, it must not be supposed that 
it is a useless body. On the contrary, it does very valua- 
ble work in correcting the over-hasty legislation of the 
other Chamber, and in case of disaerreement often has 
its own way or effects a compromise.^ 

The two Chambers meeting: in ioint session form 

what is called the National/Assembly, which, 

tionai as wc havc seen, has power to revise the con- 

Assembly. . . -'•'-.••. -.- ••• ■ ,,,,, ,.^-.., ... 

stitutional laws. It has one other function, 
that of electing the President of the Republic. This 

officer is chosen for seven years, and is re- 
dent of the eligible;^ the only limit on the choice of a 

candidate being" found in the constitutional 
law of August 14, 1884, which excludes all members 
of families that have ever reigned in France, —a pro- 
vision dictated by the fear that, like Napoleon III., a 
prince might use the presidency as a step to the throne. 
The President is at the head of the Republicy^ijt he 
lives and travels in a style that is almost XS^^y foi" the 
conception of a republic as severe, simple, ^id econom- 

^ Dupriez, vol. ii. pp. 382-83. The present position and the probable 
future of the Senate are discussed by Saleilles, op. cit., pp. 37-52. 
* Dupriez, vol. ii. pp. 413-15. 
8 Const. Law of Feb. 25, 1875, Art. 2. 



THE PRESIDENT. 27 

ical has changed very much in France since the second 
Empire taught the nation extravagance/ 

The duties of the President, like those of evpy chief 
magistrate, are manifold. He is the executive Hisfunc- 
head of the nation, and as such executes the *'""^" 
laws, issues ordinances,^ and a,j)points all the officers o£ 
the sTOvernment.^ He has also certain functions of a 
legislative character, but, except for the right of initi- 
ative in legislation, these are not in fact very exten- 
sive. He has no veto upon the laws, and although 
he may require the Cliamhers to reconsider a bill, the 
right has never been exercised.* With the consent of 
the Senate he can dissolve ■.th£i. Chamber of Deputies/ 
but this power has also fallen into disuse, because the 
members of his cabinet are very much under the control 
of the deputies, who dread the risk and expense of an 
election ; and, in fact, a dissolution has not taken place 
since President MacMahon's unsuccessful attempt to use 
it in 1877 as a means of getting a Chamber in sym- 
pathy with his views. The President has power to make 
treaties ; but treaties of peace, of commerce, those which 
burden the finances, affect the persons or property of 
French citizens in foreign countries, or which change 
the territory of France (in other words, all the more im- 

^ C£. G. Channes, Nos Fautes, Letter of Jan., 1885 ; Theodore Stan- 
ton in the Arena, Oct., 1891. 

^ For the nature of this power, see pp. 42-44, infra, 
8 Const. Law of Feb. 25, 1875, Art. 3. 

4 Const. Law of July 16, 1875, Art. 7 ; Dupriez, vol. ii. p. 369. It 
is not likely to be used unless after the bill has passed the cabinet that 
favored it has resigned, and another hostile to it has come in. 

5 Const. Law of Feb. 25, 1875, Art. 5. 



28 FRANCE. 

portant ones), require tlie r^il^ification o£ the Chambers,! 
A declaration of war also requires their consent j ^ but 
as a matter of fact the government managed to wage 
war in Tunis and Tonquin without any such consent, 
alleging at first that the affair was not a war, and 
afterwards defending itself on the ground that the Par- 
liament by voting credits had virtually sanctioned its 
course.^ 

Unlike the President of the United States, the French 
President is not free to use his powers accord- 

His Powers • , i • • i , p • i , 

are reaUy lug to nis owu judgment, lor lu order to 
the ministers make him independent of the fate of cabi-, 

in his name. . 

nets, and at the same time to prevent his 
personal power from becomhig too great, the constitu- 
tional laws declare that he shall not be responsible for 
his official conduct, except in case of high treason, and 
that all his acts of every kind, to be valid, must be 
countersigned by one of the ministers ; and thus, like 
the British monarch, hejias been put under guardian-^^ 
ship and can do no wrong.* When, therefore, we speak 
of the p owers of the President, it must be remembered 
that these are really exercised by the ministers, who are 
responsible to the Chamber of Deputies. Tlie Presi-^ 
dent, indeed, is not usually present at the cabinet con- 
sultations {conseils de cabinet) in which the real policy 
of the government is discussed, and as a rule he pre- 
sides only over the formal meetings {conseils des mi' 

1 Const. Law of July 16, 1875, Art. 8. 

a Id., Art. 9. 

' See Lebon, Franlcreich, pp. 46, 47. 

* Const. Law of Feb. 25, 1875, Arts. 3 and 6. 



THE PRESIDENT. 29 



nistres) held for certain purposes specified by law.^ He 
has power/it is true, to select the ministers, and in this 
matter he can use his own discretion to some extent, jijit^ 
in fact he generally intrusts some one with the forma- 



tion of a cabinet, ^nd appoints the ministers this man. 
suggests.'^ (His duty in these cases is not, how^ever, as 
I simple as that of the English King, because, for reasons 
I that will be discussed in the next chapter, there is usually 
1:\ on the fall of a cabinet no leader of a victorious oppo- 
llsition to whom he can turn.j A good deal of tact and 
I skill is sometimes required at cabinet crises, and it is 
said that on one occasion the formation of a ministry 
was due to the personal influence of President Carnot.^ 
Sir Henry Maine makes merry over the exalted office 
and lack of power of the President. " There is," he 
says, " no living functionary who occupmg, a more pitia- 
ble position than a French President. (The old kings 
of France reigned and governed. The Constitutional 
King, according to M. Thiers, reigns, but does not 
govern. The President of the United States gov- 
erns, but he does not reign. It has been reserved for 
the President of ^he French Republic neither to reign 
nor yet to govern." ^ 

At first sight the situation does, indeed, appear some- 
what irrational. When the head of the state is desig- 

1 Lebon, Frankreich, p. 53 ; Dupriez, vol. ii. pp. 350-51 and 367- 
68, states that the President is often present when important matters are 
discussed, but cannot influence the decision. 

2 Dupriez, vol. ii. p. 340. 

8 See " France under M. Constans," in Murray^s Magazine for May, 
1890. 
* Popular Government, p. 250. 



30 FRANCE. 

nated by the accident of birth it is not unnatural to 
make of him an idol, and appoint a high priest to 
speak in his name ; but when he is carefully selected 
as the man most fit for the place, it seems a trifle illo- 
gical to intrust the duties of the office to some one else. 
By the constitution of Sieyes an ornamental post of a 
similar character was prepared for the First Consul, but 
Napoleon said he had no mind to play the part of a 
pig kept to fatten. In government, however, the most 
logical system is not always the best, and the anoma- 
lous position of the President has saved France from 
the danger of his trying to make himself a dictator, 
while the fact that he is independent of the changing 
moods of the Chambers has given to the Republic a 
dignity and stability it had never enjoyed before. It 
is a curious commentary on the nature of human am- 
bition, that in spite of the small power actually wielded 
by the President in France, the presidential fever seems 
to have nearly as strong a hold on public men as in this 
country. 

Before proceeding to consider the ministers, there is 
The Conseil ^^® otlicr institution which claims attention 
d'Mat. ^^ account of its past rather than its present 
position. This is the Conseil d''Etat or Council of 
State,^ a body whose importance has varied a great deal 

1 Aucoc, Conferences sur le Droit Adm., liv. ii. ch. i. § 3 ; Ducrocq, 
Cours de Droit Adm., tit. i. ch. i. sec. i. § iii. ; Bceuf, Resume' sur le Droit 
Adm., ed. of 1895, p. 32 et seq. ; cf. Lebon, Frankreich, pp. 96-98; Du- 
priez, vol. ii. pp. 285-316, passim, and pp. 481-92 ; Gooduow, Comparative 
Administrative Law, vol. i. pp. 107-13. See also articles entitled " Le 
Conseil d'Etat et les Projets de Rdforme," by Varagnac, Revue des Deux 
Mondes, Aug. 15 and Sept. 15, 1892. 



THE COUNCIL OF STATE. 31 

at different times. Under Napoleon I., and again dur= 
ing the second Empire, in addition to the possession of 
executive functions, it was a real source of legislation ; 
while at the time of the Restoration and the Monarchy 
of July it became what it is to-day, a council with high 
attributes, but very little authority. Except as a court 
of administrative justice,^ it has now lost most of its 
influence ; for although it must be consulted before 
certain classes of ordinances can be issued, and may be 
consulted on other administrative matters, its advice 
need never be followed ; and in fact the habit of con- 
sulting it is said to have become httle more than a mere 
form.^ The legislative functions of the Council have 
faded even more completely to a shadow, as is proved 
by the fact that while the Government or either of the 
Chambers may seek its aid in the framing of statutes, 
the privilege is rarely exercised by the ministers, scarcely 
at all by the Senate, and never by the Chamber of 
Deputies. 

The members of the Council are divided into several 
classes, but those belonging to the most important class, 
and the only ones who can vote when the Council sits 
as a court, are appointed and dismissed at will by the 
President of the Republic.^ 

^ For its functions of this nature, see pp. 55-61, infra. 

^ "La Rdforme Administrative — La Justice," by Vicomte d'Avenel, 
Revue des Deux Mondes, June 1, 1889, pp. 597-98. 

^ The other members are also appointed by the President subject to 
certain conditions, but as he can dismiss any of them, their tenure of office 
depends on the pleasure of the cabinet, and in fact by means of resigna- 
tions or removals, most of the councilors were changed in 1879 in order 
to make the council Republican. — " Le Conseil d'Etat," Varagnac, 
Uevue des Deux Mondes, Sept. 15, 1892, p. 295. 



32 FRANCE. 

In a parliamentary system the ministers have two 
The minis- ^istinct functions. One of these is the same 
^^'^' as that of the members of the President's 

Cabinet in the United States, and consists of the man* 
agement of the departments of the administration. 
The other is the duty of representing the government in 
the Chambers, urging the adoption of its measures, and 
defending its policy against the attacks of its adversa- 
ries. These two functions are not necessarily united, 
and in fact it has been a common habit in some coun- 
tries to appoint ministers without portfolios, as it is 
called, that is, without any executive duties at all, in 
order that they may devote their whole energy to the 
battles in Parliament.^ Although there is nothing to 
prevent such a practice in France, it is not followed 
to-day, each minister being at the head of a particular 
branch of the administration. The number of depart- 
ments, however, and the distribution of the public busi- 
ness among them is not fixed by law, but is regulated 
from time to time by decree of the President of the 
Republic. The number of ministers is, therefore, con- 
stantly liable to change according to the immediate 
needs of the public service. At present there are twelve 
departments or ministries : those of the Interior ; of 
Justice ; of Foreign Affairs ; of Finance ; of War ; of 
the Navy ; of Education and the Fine Arts ; of Pub- 
lic Works ; of Labor ; of Commerce, Industry, and 

^ This practice virtually exists in England, because some of the offices 
held by the ministers, such as that of First Lord of the Treasury, and 
that of Chancellor of the Duchy of Lancaster, involve no administrative 
duties. 



THE MINISTERS. 33 

Posts and Telegraphs; of Agriculture; and of tlie 
Colonies.^ 

The constitutional law of February 25, 1875 (Art. 
6), declares that the ministers are collectively Their re- 
responsible to the Chambers for the general trtS^"^*^ 
policy of the government, and individually for ^™^ers. 
their personal acts. The object of this clause was, of 
course, to establish the parliamentary system, and in 
fact the French ministry is responsible to the Chamber 
of Deputies, as the English is to the House of Com- 
mons, and resigns on a hostile vote on any matter of 
importance. Except, indeed, for the Ministers of War 
and of the Navy, who are usually military men, the 
cabinet officers are almost always selected from among 
the members of Parliament,^ although the reason for 
this practice in England does not apply in France, 
because the ministers have a right to be present and 
speak in either Chamber, whether members of it or not.^ 

But in order to understand fully the position of the 
French ministers, and their relation to the m. • 
Parliament, it is necessary to realize their ^d"itr^^^ 
enormous power, and this is due largely to *'^"^®^- 
three causes, — the paternal nature of the government, 
the centralization of the state, and the possession by 
the executive of authority that in an Anglo-Saxon 

1 Boeuf, Resume, ed. of 1895, pp. 22, 23. The last ministry, that of 
the Colonies, was, however, created by statute in 1894, and as Boeuf 
remarks, the Chambers can always prevent the creation of a ministry by 
refusing to make the necessary appropriations. 

2 Dupriez, vol. ii. p. 336. 

^ Const. Law of July 16, 1875, Art. 6. In practice this privilege is also 
accorded to their under-seeretaries. Lebon, Frankreich, p. 52. 

VOL, I. 



84 FRANCE. 

country would be lodged with the legislature or the 
courts of law. 

On the first of these matters, the paternal nature of 
the government, there is no need to dwell 

Paternal na- i ,i An 

ture of the at length. Aii governments are growing 
more paternal at the present day, for a re- 
action has set in against the extreme laissez-faire 
doctrines preached by Adam Smith, John Stuart Mill, 
and the English political economists of the earlier 
school. There is a general tendency to restrain the 
liberty of the individual and subject him to govern- 
mental supervision and control. Such control and 
supervision are traditional in France, and far exceed 
anything to which we are accustomed in this country. 
All trades and occupations are there subject to a great 
deal more police inspection than with us. They require 
more generally to be licensed, and are regulated and 
prohibited by the administrative officials with a much 
freer hand. And although the liberty of the press and 
the right of holding public meetings are now sub- 
stantially realized, the right of association is still very 
limited, for no society of more than twenty persons, 
except business companies, and associations of persons 
pursuing the same profession or trade, can be formed 
without the permission of the Minister of the Interior 
or the prefect of the department.^ It is easy to see 
how much power all this paternalism places in the 
hands of the administration. 

An explanation of the centralization of the state 
entails a brief survey of local government; and here 

* Lebon, Frankreich, pp. 32-39 ; Ducrocq, tit. ii. ch. iii. ; ch. iv. sec. iii. 



LOCAL GOVERNMENT. 35 

we meet with a deeply rooted French tradition, for cen- 
tralization was already great under the old re- Centraiiza- 
gime, and although the first effect of the Rev- *^°"- 
olution was to place the, administration of local affairs 
under the control of independent elected bodies, the 
pressure of foreign war, and the necessity of maintain- 
ing order at home, soon threw despotic power into the 
hands of the national government. Under Napoleon 
this power became crystallized in a permanent form, and 
an administrative system was established, more perfect, 
more effective, and at the same time more centralized 
than that which had existed under the monarchy.^ 
The outward form of the Napoleonic system has been 
continuously preserved with surprisingly little change, 
but since 1830 its spirit has been modified in two dis- 
tinct ways : first, by means of what the French call 
deconcentration, that is, by giving to the local agents 
of the central government a greater right of independ- 
ent action, so that they are more free from the direct 
tutelage of the ministers ; second, by a process of true 
decentralization, or the introduction of the elective 
principle into local government, and the extension of 
the powers of the local representative bodies. But 
although the successive rulers of France have pursued 
this policy pretty steadily, the progress of local self- 
government has been far from rapid. ^ One reason for 

^ For a short but vigorous comment on Napoleon's system, see G. L. 
Dickinson, Revolution and Reaction in Modern France, eh. ii. 

2 On the subject of local government, I have used Aucoe, Conferences, 
3d ed. ; Bceuf, Resume, ed. of 1895 ; Leroy-Beaulieu, A dm. Locale en 
France et en Angleterre ; Lebon's two works on France ; Goodnow, Comp. 
Adm. Law. There is a popular account in Block, Entretiens familiers 
sur I'Adrn. de notre pays. 



36 FRANCE. 

this is the habit of looking to the central authorities for 
guidance in all matters. Another is a fear on the part 
of the government of furnishing its enemies with 
rallying-points which might be used to organize an op- 
position, — a fear that takes shape to-day in provisions 
forbidding the local elected councils to express any 
opinions on general politics, or to communicate with 
each other except about certain matters specified by 
law. A third cause of the feeble state of local self- 
government is to be found in the fact that the Kevolu- 
tion of 1789 destroyed all the existing local divisions 
except the commune, and replaced them by artificial 
districts which have never developed any real vitality, 
so that the commune is the only true centre of local life 
in the republic.^ A fourth, and perhaps the most 
potent cause of all, is the dread of disorder which is 
constantly present in the minds of Frenchmen, and 
makes them crave a master strong enough to cope with 
any outbreak. 

France is divided into eighty-six departments, at the 
Local gov- head of each of which is a prefect, appointed 
The depart- and rcmovcd at pleasure by the President of 
the prefect, the Rcpublic, but in reality nominated by the 
Minister of the Interior. The office is, indeed, regarded 
as distinctly political, and the incumbent is often re- 
placed when the minister changes. The prefect, who 
is by far the most important of the local officials, occu- 
pies a double position, for he is the agent of the 
central government in regard to those matters of 
general administration which are thought to concern 

^ Most of the existing communes were in fact created in 1789. 



LOCAL GOVERNMENT. 37 

the whole country, and at the same time he is the 
executive officer of the department for local affairs. 
In the former capacity he is in theory the immediate 
subordinate of the Minister of the Interior, but since 
his duties extend to all branches of the administration, 
he corresponds in practice directly with any minister in 
whose sphere of action the matter with which he is 
called upon to deal may lie. His authority as the 
agent of the central government is not, however, the 
same in all cases. Sometimes he is absolutely subject 
to the orders of the ministers. This is true when he 
executes general laws and ordinances ; but when, for 
example, he directs the police of the department, or 
supervises the subordinate local bodies, he proceeds 
on his own responsibility, and his acts can be overruled 
by the central government only in case they are con- 
trary to law, or give rise to complaints on the part of 
the persons affected by them. In pursuance of the 
policy of deconcentration, the prefect has been given 
an independent authority of this kind over a large 
number of subjects, and he was intended to exercise his 
own judgment in regard to them, but the influence 
and pressure of the deputies has, it is said, induced 
him to shirk responsibility as much as possible by refer- 
ring doubtful questions to the ministers, and hence the 
centralization has not been diminished as much as was 
expected.^ In matters of general administration, the 
prefect is assisted by a prefectoral council of three or 
four members appointed by the President of the Re- 
public ; but, except when it sits as an administrative 

1 Channes, Letter of October 1, 1884. 



38 FRANCE. 

court; the functions of this body are almost altogether 
advisory, and their use has become scarcely more than 
a form.^ 

As the executive officer for local a:ffairs, the prefect 
The General carrics out tlic rcsolutious of the General 
Council. Council. This is the representative assembly 
of the department, and is elected by universal suffrage, 
one of the members being chosen in each canton for 
six years, and half of them being renewed every three 
years. The authority of the body is jealously hmited. 
Its competence is almost entirely confined to affairs 
that are deemed to have a strictly local interest,^ and 
even in regard to these its powers are not absolute, for 
its votes on certain matters can be annulled by the 
President of the Republic, and its budget, that is the 
annual tax levy and list of appropriations, is not vahd 
without his approval. Although the Council has the 
right of final decision in a considerable class of sub- 
jects, its actual power over them is curtailed in a variety 
of ways. In the first place it does not carry out its 
own votes, but their execution is intrusted to an agent 
of the central government, the prefect, who appoints 
all the officials, manages the public institutions, and 
signs the orders for all payments of money ; the direct 
control of the council over his performance of these 
duties extending only to the election of a standing 
commission which has little more than a right of inspec- 

^ Vicomte d'Avenel, "La E^forme Administrative," Revue des Deux 
Mondes, June 1, 1889, p. 596. 

^ Its functions in relation to the general administration consist in ap- 
portioning certain direct taxes, in giving its advice when asked, and in 
expressing its wishes on matters not connected with general politics. 



LOCAL GOVERNMENT. 39 

tion.^ In the second place, the prefect has an opportu- 
nity to exert a great deal of influence over the action 
of the Council, for not only has he a right to address 
it, but he prepares the budget and all other business, 
and in fact it is not allowed to act on any matter until 
it has heard his report.^ Moreover the Council is only 
permitted to sit a very short time. It has two regular 
sessions a year, whose duration is Hmited one to a 
month, the other to a fortnight, and although extra 
sessions can be held they must not exceed one week 
apiece. Finally its very existence is insecure, for it can 
be dissolved by the chief of the state. In general it 
may be said that in matters falling within its province 
the General Council cannot do everything it wants, but 
can prevent almost anything it does not want. Its 
financial resources are not large,^ and its attention is 
confined for the most part to the construction of roads, 
subventions to railroads, and the care of schools, insane 
asylums, and other institutions of a similar character. 

At one time a hope was entertained that politics 
might be kept out of the general councils, but it has 
not been fulfilled, the departmental elections being 
regularly conducted on party lines.* It has therefore 

^ The Council can delegate to the commission a somewhat indefinite 
class of functions, but it is not in fact a body of much importance. Du- 
priez, vol. ii. pp. 467-68. 

2 Aucoc, p. 282. 

8 Almost its only source of revenue is the addition of a limited sum to 
the direct state taxes. 

* Boz^rian, in his Etude sur la Revision de la Constitution (pp. 89-90), 
attributes this to the fact that the local assemblies take part in the elec- 
tion of senators. 



40 FRANCE. 

been thought best to intrust the supervision of the 
communes largely to the central government and its 
representative the prefect, rather than to the councils 
with their partisan bias, and this, of course, deprives 
the latter of a part of the importance they would other- 
wise possess.^ 

The next local division is the arrondissement. This 
The arron- ^^ ^ mcrc administrative district without cor- 
dissement. porato personality, with no property, revenues^, 
or expenses of its own, and although it has a sub-pre- 
fect and an elected council, neither of them has much 
power. In fact it has been proposed to abolish the 
arrondissement altogether. 

The canton, which is the next subdivision, is really a 
The can- judicial and military rather than an admin- 
^^^' istrative district, and therefore does not con- 

cern us here. 

We now come to the communes, which are the small- 
The com- ®^^ local entities, but differ enormously in 
'^^®" area and population. They vary in size from 

twenty acres to over a quarter of a million, and they 
run all the way from a hamlet with a dozen inhabitants 
to large cities ; yet with the exception of Paris and 
Lyons they are all governed on one plan. The officer 
in the commune whose position corresponds 

e mayor. ^^ ^^^^^ ^^ ^j^^ prefect in the department is 

the mayor. He acts in the same way both as agent of 
the central government, and as the executive head of the 

1 By the law of 1884 on municipalities, part of the supervision over these 
bodies, which had previously been in the hands of the general councils, 
was withdrawn and given to the prefect. 



LOCAL GOVERNMENT. 41 

district, but whereas in the prefect the former character 
predominates, the mayor is chiefly occupied with local 
matters. It is largely for this reason that, unlike the 
prefect, he is not appointed by the President, but since 
1884 has been elected by and from the communal coun- 
cil for the length of its own term.^ The mayor is, 
however, by no means free from control. So far as he 
acts as agent of the central government, he is abso- 
lutely under the orders of the prefect. Nor is this all. 
The subject of communal poHce, which includes the 
public health and other matters of a kindred nature, is 
considered a part of "the local administration, but the 
acts of the mayor in regard to it can be annulled by 
the prefect, who has also power in many cases to issue 
direct orders of his own. Moreover the police officials 
require to be confirmed by the prefect,^ and can be 
removed only by him.^ But even these extensive pow- 
ers of control are not deemed enough, and it is provided 
that the mayor can be suspended from office for a 
month by the prefect, or for three months by the Min- 
ister of the Interior, and can be removed altogether by 
the President of the Republic. 

The deliberative organ of the commune is the com- 
munal council, which varies in size from ten to thirty- 
six members, and is elected by universal suffrage for 
four years. Its authority extends to all communal 

^ The office is an honorary one, as the mayor receives no salary. 

^ Or sub-prefect. 

^ The mayor is not free from control in regard to other matters of 
local interest, for his accounts must be submitted for approval to the pre- 
fect, who can order the payment of any expense properly authorized if 
the mayor neglects to make it. 



42 FEANCE. 

affairs, except that it has nothing to do with the broad 
subject of police, although that is regarded for other 
purposes as a local matter. The general statute on 
municipal government lays down the general princi- 
ple that the decisions of the council on local affairs, 
when legally made, are conclusive without the approval 
of any superior administrative official, but in a subse- 
quent section all the most important matters are spe- 
cially excepted from the rule. The Hst of exceptions 
includes almost every financial measure, the construction 
of roads and buildings, and the sale of communal prop- 
erty.^ The council has, therefore, very much less power 
than might at first sight be supposed ; and in order to 
guard against any attempt on its part to exceed these 
slender privileges, the prefect is given a discretionary 
authority to suspend it for a month, while the President 
of the Republic can dissolve it entirely, and appoint a 
commission with Hmited powers to rule the commune 
for two months, when a new election must take place. 
The general laws of local government already de- 
scribed do not, however, cover the whole 
field, because a dread of the explosive char- 
acter and communistic tendencies of the democracy of 
Paris has prevented the capital from enjoying even the 
measure of liberty granted to other towns. The city 
has, indeed, a municipal council composed of eighty 
elected members and endowed with most of the usual 
powers, and a general council for the department with 
limited powers, composed of these same eighty rein- 

1 The official who has power to approve the budget can also inscribe 
therein certain obligatory expenses. 



PAEIS. 43 

forced by eight suburban members ; but the executive 
authority is entirely in the hands of the central govern- 
ment. It is lodged in part with the mayors of the 
twenty arrondissements, who are appointed directly by 
the President of the Republic ; but chiefly with two 
prefects appointed in the same way. One of these, 
the Prefect of the Seine, has most of the functions of 
the ordinary prefect, together with those of a central 
mayor ; while the other, the Prefect of Police, has 
charge of the police, and is directly responsible to the 
Minister of the Interior.^ 

This sketch of local government in France shows 
how centralized the state still remains, what extensive 
supervision and control the administration keeps in its 
own hands, and how slight is the measure of real local 
autonomy if measured by an Anglo-Saxon standard. 
In fact, the central government still makes itself contin- 
ually and actively felt in local affairs, and this is for 
the ministers a great source of power, but also, as we 
shall see later, a cause of weakness. 

A third source of the enormous power of the minis- 
ters in France is the possession by the execu- 
tive of authority that in an Anglo-Saxon and judicial 
country would be lodged with the legislature the execu- 
or the courts of law. This requires an expla- 
nation, for it involves some of the most strange and 

^ In Lyons the control of the police is still intrusted to the Prefect of 
the Rhone ; in Marseilles it is in charge of the Prefect of Bonches-du- 
Rhone. In all cities of over 40,000 people the organization of the police 
is fixed by decree of the chief of the state, although the members of the 
force are appointed as in other communes. 



44 FRANCE. 

interesting peculiarities of French, and, indeed, of con- 
tinental political ideas. 

Let us take first the legislative authority of the execu- 
tive in France. When an English or an Ameri- 

Legialative i • i i p i • 

decrees and cau legislator draits a statute lie tries to cover 

ordinances. . ., ^ . 

all questions that can possibly arise. He goes 
into details and describes minutely the operation of 
the act, in order that every conceivable case may be 
expressly and distinctly provided for. He does this 
because there is no one who has pOwer to remedy 
defects that may subsequently appear. If the law is 
vague or obscure, it can receive an authoritative inter- 
pretation only from the courts by the slow process of 
litigation. If it is incomplete, it must remain so until 
amended by a subsequent enactment. In some cases, it 
is true, an officer or board is given by statute power 
to make regulations. The Local Government Board 
and our boards of health furnish examples of this ; 
but such cases are exceptional, and most Anglo-Saxons 
feel that the power is in its nature arbitrary, and ought 
not to be extended farther than is necessary. And here 
it is important to distinguish between rules issued by the 
head of a department for the guidance of his subordi- 
nates and the regulations of which we are speaking. 
The former are merely directions given to the officials 
for the purpose of instructing them in their duties, and 
are binding on no one else. The right to issue them 
must belong, to some extent, to every one who has other 
persons under his orders, although they are used much 
more systematically in France than in the United States. 
The regulations with which we are concerned here are 



THE ORDINANCE POWER. , 45 

of quite a different kind, for they are binding on all 
citizens who may be affected by them, and have, in fact, 
the character of laws. 

In America the authority to make regulations is de- 
legated by the legislature cautiously, and apart from 
such an express delegation no of&cer of the govern- 
ment has power to issue any ordinances with the force 
of law. But in France all this is very different. Stat- 
utes that do not concern the rights of a man against 
his neighbor, that do not, in other words, form a part 
of the Civil Code, are often couched in general terms, 
and enunciate a principle which the Executive is to 
carry out in detail.^ Sometimes the President of the 
Republic is expressly given power to make regulations, 
but even without any special authority he has a general 
power to make them for the purpose of completing the 
statutes, by virtue of his general duty to execute the 
laws.^ Such regulations in France are called acts of 
secondary legislation, and the ordinances of the Presi- 
dent in which they are contained are termed decrets. 
The power to make them is not, however, confined to 
the chief of the state. For matters of inferior grav- 
ity the laws often confer a similar authority on the min- 
isters, the prefects, and even the mayors, and in this 

^ Dupriez (vol. ii. p. 377), after remarking this difference between 
English and French legislation, expresses a regret that the French Parlia» 
ment has shown a tendency of late years to go more into details. 

^ On the power to issue ordinances in France, see Aucoc, Conferences, 
§§ 52-57, 66, 91, 170 ; Ducrocq, Cours, §§ 61-66, 72-73, 109-10, 210-14 ; 
Goodnow, vol. i. pp. 85-87. 

Before issuing certain classes of ordinances the President must consult 
the Council of State, but he is not obliged to follow its advice. 



46 FRANCE. 

case the edicts are termed arretes, to distinguish them 
from the more solemn ordinances of the President.^ 
The regulations cannot, of course, be contrary to law, 
or in excess of the authority of the official who issues 
them. If they are so and infringe private rights, a 
process to have them annulled may be instituted before 
the administrative courts, and in certain limited cases 
the ordinary courts can also refuse to apply them.^ 

So much for the power of the executive to make law, 
Appropria- ^^* ^^^^ ^^^^ ^^^ cxliaust its eucroachmcnts 
tions. Qj^ what we have learned to regrard as the 

province of the legislature, for it is less strictly held to 
the appropriations voted by the Chambers than is the 
case with us. The virements (that is to say, the use for 
one purpose of approj)riations voted for another), which 
were an abuse under the Empire, have, indeed, been 
abolished, except as between different items in the same 
chapter of the annual budget ; but certain chapters 
are designated each year to which additions can be 
made by decree of the President issued with the con- 
sent of the council of ministers. Moreover, in urgent 
and unforeseen cases arising- when Parliament is not in 
session, the government has power by means of such a 
decree, not only to incur the expenses called for by the 
emergency, but also to open an extraordinary credit on 
its own authority and borrow the money that it needs.^ 

^ Lebon, Frankreich, p. 23 ; Aucoc, Ducrocq, ubi cit. 

2 Laferri^re, Traite de la Jur. Adm., liv. iii. ch. i. see. Ii. ; liv. vi. ; liv. 
vii. ch. i. sec. iv. 

8 In both cases notice of the decree must be laid before the Chambers 
within fourteen days from their next meeting. (Lebon, Frankreich, p. 
162.) It is worth while, moreover, to note in passing that there is 



ENGLISH AND FRENCH HISTORY. 47 

One may, perhaps, be pardoned for dwelling at some- 
what greater length on the judicial powers of j^^iiciai 
the executive in France, both because they thnxecu- 
are so Httle understood by English-speaking *^^®" 
people, and because their origin may be traced to a 
tradition which has its roots far back in the past. 

The characteristic difference between the political 
history of England and that of France is to character- 
be found in the fact that the English, though eneebefween 
influenced by each new spirit of the age, frlilchhis- 
have never yielded entirely to its guidance, ^°^^' 
while the French have always thrown themselves into 
the current, and, adopting completely the dominant 
ideas of the time, have carried them to their logical 
results. Thus, in the Middle Ages, the feudal system 
never became fully developed in England as it did in 
France. Again, when absolute monarchy came into 
vogue, the British sovereign was not able to acquire 
the arbitrary power of the Bourbons. And, lastly, 
democracy made its way neither so rapidly nor so 
thoroughly on the north as on the south of the Chan- 
nel. The result is that in France the institutions of 
any period have been adapted almost exclusively to 
the wants of the time in which they were produced, 
and in the succeeding age it has been thought necessary 
to destroy them and devise new ones more in harmony 



no effective process for bringing to account a minister who exceeds the 
appropriations. He can, indeed, be impeached, but except in times of 
great excitement this would not be done if the money had been expended 
for public purposes ; and as regards civil liability, there is no court that 
has power to compel him to refund the suras which he has spent illegally. 



48 FRANCE. 

with the new conditions j ^ whereas in England there 
has been no need of such sweeping changes, and it has 
been possible to preserve in a modified form many of 
the most important features of the government. Hence 
the permanence and continuity of the political system.^ 
Let us inquire how these facts have affected the deveh 
opment of judicial and administrative institutions in 
the two countries. 

The Norman kings of England strove deliberately to 
check the growth of the feudal system, and 
veiopment tlicir succcssors coustautly followed the same 
power in policy. Now the csscncc of the feudal sys- 
tem consisted in the blending of public and 
private law by making all political relations depend on 
the tenure of land ; and, in fact, according to the strict 
feudal theory, no man had direct relations with any 
superior except his immediate overlord. Every great 
vassal of the crown, therefore, had jurisdiction over all 
the tenants on his estate, which he exercised by holding 
a court of his own for the administration of justice 
among them. The English kings resisted this principle, 
and tried to bring their power to bear directly on all 
The iidieiai ^^^® pcoplc of the realm. For this purpose 
system. sheriffs were appointed to represent the crown 
in the counties, and what was of more permanent im- 
portance, the gravest crimes, actions for the possession 

1 This Is the more striking because the French are in some ways more 
conservative than the English, as, for example, in their retention to the 
present day of public executions. M. Lebon truly remarks (France as 
It Is, p. 86) : " People have no idea of the spirit of routiue and conser- 
vatism which prevails in France." 

* Cf. Freeman, Groivth of the English Constitution, pp. 63-66. 



ENGLISH CENTKALIZATION JUDICIAL. 49 

of land, and subsequently other matters, were brought 
within the jurisdiction of the Curia Regis} As early 
as the reign of Henry I., moreover, royal officers were 
commissioned to travel about the country holding court, 
a practice which was renewed in a more systematic 
form by Henry II., and has continued with short in- 
terruptions to the present day.^ The chief object of 
the early kings in sending out the itinerant justices, as 
they were called, was no doubt financial; for their 
duties consisted in assessing taxes, collecting fines for 
violation of the law, and administering justice, which 
was in itself a source of no small profit in the Middle 
Ages.^ The functions of the justices in the collection 
of revenue grew, however, less and less prominent, but 
their administration of justice became of permanent 
importance, and in regard to this two tendencies were 
at work. In the first place, the royal judges adopted 
new methods of procedure and gradually developed the 
trial by jury, while the baronial courts clung to the 
ordeal and other barbaric forms of trial.* " The glad- 
some light of jurisprudence," as Coke called it, came 

^ See Pollock & Maitland, History of English Law, vol. i, pp. 85-87 and 
chs. V. and vi. 

^ The institution of traveling judges was not new. It had been used 
by Charlemagne (Hallam, Middle Ages, ch. ii. part ii. 5), and a similar 
practice was employed by Alfred, Edgar, and Canute (Stubbs, History 
of England, xi. §§ 127, 134). On the itinerant justices, see Stubbs, lb. 
xi. 127 ; xii. 141, 145, 150 ; xiii. 163 ; xv. 235 ; Gneist, Englische Ver~ 
fassungsgeschichte, pp. 148, 224-28, 305 (note), 318-19, 447. Pollock & 
Maitland, vol. i. pp. 134, 149, 179 ; Franqueville, Le Systeme Judiciaire 
de ta Grande Bretagne, vol. i. pp. 149 et seq. The royal duty of sending 
the justices in eyre is one of those insisted upon in Magna Charta, § 18. 

3 Stubbs, lb. xi. 127. 

4 Cf. Stubbs, lb. xiii. 164 ; Gneist, lb. p. 142. 

VOL. I. 



50 FRANCE. 

■with the king's courts, and hence it is not surprising 
that they supplanted the baronial courts, and in time 
drew before themselves all the important lawsuits. In 
the second place, the commissions which had at first 
been issued to high officials, barons, and knights, be- 
came confined to regular judges, and about the time of 
Edward I. were given only to the members of the royal 
courts at Westminster.^ The same body of judges, 
therefore, expounded the law in all parts of the realm, 
and hence England, alone among the countries of 
Europe, developed a uniform national justice called the 
common law.^ The people naturally became attached 
to this law and boasted of the rights of Englishmen, 
while the courts that were the creators and guardians 
of the law became strong and respected. 

The very fact that the judicial branch of the govern- 
ment became so highly developed made the 
istrative Centralization of the administration unneces- 
sary. At the time when the itinerant justices 
first went on circuit, administration in the modern 
sense was of course unknown, and such local affairs as 
needed attention were regulated by the shire moots 
and other local meetings.^ The sheriff, indeed, repre- 
sented the crown, but his powers were curtailed more 
and more, until, apart from his command of the mili- 
tary forces of the county, he became little more than 
an officer of the courts.* When the local administra- 

^ Gneist, Englische Verfassungsgeschichte, p. 318 ; Stubbs, History of 
England, xv. 235. 

2 Cf. Hallam, Middle Ages, cb. viii. part ii. 3. 

» Stubbs, lb. XV. 205. 

4 On the powers of the sheriff, see Stubbs, lb. xiii. 163, xv. 204:-7i 
Gneist, lb. pp. 115-20, 297. 



FRANCE CENTRALIZED LATER. 51 

tion grew more important, it was confided not to him, 
but to justices of the peace, who, though nominally 
selected by the king, were never strictly under his 
orders, and in time became almost completely inde- 
pendent, except for the purely judicial control exercised 
by the Court of King's Bencli.^ 

In England, therefore, the royal power came early 
into contact with the people all over the 
kingdom by means of the courts of law, mentofthe 

.,.., , I'll direct royal 

and the judicial system became highly cen- power in 
tralized; while the local administrative insti- 
tutions developed slowly, and through them the king's 
authority was little felt. In France, on the other hand, 
the course of events was very different, for the royal 
power came into direct contact with the people at a much 
later date, and therefore in quite another form. When 
the feudal system became established, the The judicial 
great vassals set up their own courts and sue- ^y^*^"^- 
ceeded in excluding the royal judges from their fiefs, 
so that the direct jurisdiction of the crown became 
confined to the comparatively small part of the country 
which was included in the royal domain. Gradually, 
indeed, as the feudal system began to lose its strength, 
the king's jurisdiction encroached upon that of the 
vassals, — a process which was carried on both by 
insisting on the right of appeal to the royal tribu- 
nals, and by reserving for the exclusive cognizance of 
the king's courts a somewhat indefinite class of cases 

^ Gneist, Englische Verfassungsgeschichte, pp. 298 et seq., 468 et seq.} 
and see the note at the end of this chapter. 



52 FRANCE. 

known by the name of cas royaux} But this process 
aroused serious resistance on the part of the territorial 
lords, and it was not until the sixteenth century that 
the crown judges possessed the universal authority they 
had obtained in England more than three hundred 
years earlier. So strong, in fact, did the local jealousy 
of the Parliament of Paris (the king's high court of 
justice) remain, that after the great fiefs fell into the 
hands of the crown, they were not placed under the 
jurisdiction of that tribunal, but were given independ- 
ent parliaments of their own.^ At the outbreak of the 
Revolution there were thirteen separate parliaments, so 
that every considerable province had a distinct body 
of magistrates.^ Under these circumstances, the courts 
could not create a uniform national justice like the 
English common law, and although since the revolution 
such a uniform system has been provided by the Code, 
this does not strengthen the hands of the judges, but 
has rather the opposite tendency. In the first place, it 
is not their work, and hence does not redound to their 
glory; and secondly, by weakening the force of prece- 
dent, it diminishes the importance of judicial decisions. 
This review of the history of the courts of law shows 

1 Aubert, Le Parlement de Paris de Pliillippe le Bel a Charles VII., 
ch. i. sec. I. ; Hist, du Pari, de Paris, 1250-1515, liv. ii. ch. i.; Du Bois, 
Hist, du Droit Criminel de la France, part i. ch. i. ; Esmein, Hist, du Droit 
Franqais, part i. tit. ii. ch. i.; Hist, de la Proc. Crim., part i. tit. i. ch. i. 
sec. II.; ch. ii. sec. I.; Hallam, Middle Ages, ch. ii. part ii. 5. 

^ Du Bois, part i. ch. ii. § 2 ; Bastard d'Estang, Les Parlements de France^ 
vol. i. pp. 36-38 ; Esmein, Hist, du Droit Franqais, tit. ii. ch. i. sec. I. § 2, v. 

^ For the dates of the creation of the provincial parliaments, which 
run from 1444 to 1775, see Bastard d'Estang, vol. i. p. 189, note, and 
Esmein, ubi supra. 



HER CENTRALIZATION ADMINISTRATIVE. 53 

clearly why they have not attained in France the same 
power and authority as in Anglo-Saxon countries.^ 

The French courts of law were weak because the 
royal authority did not come into direct con- 
tact with the people at the time when public istrative 
and private law were everywhere blended, 
when the tone of thought was peculiarly legal, and 
when political power was chiefly exercised in a judicial 
or semi-judicial form.^ It made itself felt at a later 
date, and especially as the restorer of order after the 
anarchy caused by the hundred years' war. Its presence 
brought peace and prosperity, and naturally enough 
the organs which it employed acquired a high degree 
of vigor. Now, at this period, administration, in the 
modern sense, was becoming important, and as the 
royal authority came to be exercised by commissioners 
or intendants who had, indeed, certain judicial powers, 
but whose functions were chiefly administrative,^ the 
administration developed an influence and a strength 
which the courts have never attained. The administra- 
tive system became centralized, and grew to be the most 
important factor in the government.^ All classes of 
the people looked to it for protection ; ^ in fact, it took, 

1 Since the Revolution, the courts have, of course, been reorganized on 
a centralized basis. 

^ On the relative importance attributed to law in the Middle Ages, and 
in later times, see Stubbs's chapters on the Characteristic Differences 
between Mediaeval and Modern History, in his Lectures on Med. and 
Mod. Hist. 

s Ch^ruel, Die. des Inst, de la France, " Intendants des Provinces ; " 
Esmein, Hist, du Droit Fran^ais, tit. ii. ch. v. § 2. 

* Cf. De Tocqueville, An. Reg. et la Rev., liv. ii. chs. ii. iii. 

^ De Tocqueville speaks of all classes as looking on the government as 
a special providence. Id., ch. vi. (7th ed. pp. 100-103). 



54 FRANCE. 

to a great extent, the place which the judiciary filled in 
Enoland, and in those countries which had inherited 
the English principles. 

This difference in the relative authority of the courts 

and the administration was intensified, so far as 

doctrine of the United States and France were concerned, 

tion of by the poHtical philosophy of the last century. 

powers. . .,. ^.. PIT j> 

Montesquieu, m his " fepint oi the Laws, pro- 
claimed the importance of separating the executive, 
legislative, and judicial powers, and the maxim was 
eagerly accepted on both sides of the Atlantic, though 
in very different senses. Our ancestors, anxious to 
maintain the independence of the courts and the sacred- 
ness of private rights, took the principle to signify the 
necessity of so protecting the courts from the control or 
influence of the other branches of the government that 
they might be free to administer justice without regard 
to the official position of the litigants or the nature of 
the questions involved. They meant to preserve the 
Enghsh tradition that there is only one law of the land 
to which every one is subject, from the humblest citizen 
to the highest officer. The French, on the other hand, 
had acquired no great passion for law, or for the rights 
of the individual, and did not admit a claim on the part 
of any one to delay or overturn the public interests in 
order to get his own grievances redressed. Moreover, 
they had seen the Parliament of Paris interfere with 
the government by refusing to register the edicts of the 
King ; for although this tribunal had failed to acquire 
judicial supremacy, it had retained a good deal of politi- 
cal power, which it used during the years preceding the 



THE SEPARATION OF POWERS. 55 

Kevolution to resist innovations.^ Such a power might 
not be dishked as a means of opposing an unpopular 
court party, but it could not be tolerated for a moment 
when the reins of government were seized by men who 
believed themselves commissioned to reform the world. 
The French statesmen, therefore, took Montesquieu's 
doctrine in the sense that the administration ousfht to 
be free to act for the public weal without let or hin- 
drance from the courts of law. The Declaration of the 
Rights of Man proclaimed in 1789 that a community in 
which the separation of powers was not established had 
no constitution ; and a statute of the next year, on the 
organization of the tribunals, gave effect to the maxim 
as it was understood in France by providing that the 
judges should not interfere in any way with the work 
of administrative authorities, or proceed against the 
officers of the government on account of their official 
acts.^ The American and French applications of the 
doctrine of the separation of powers are both per- 
fectly logical, but are based on different conceptions of 
the nature of law. The Anglo-Saxon draws no distinc- 
tion between public and private law. To him all legal 
rights and duties of every kind form part of one univer- 
sal system of positive law, and so far as the functions 
of pubhc officials are not regulated by that law, they are 
purely matters of discretion. It follows that every legal 
question, whether it involves the power of a public 
officer or the construction of a private contract, comes 

1 Cf. Edward J. Lowell, The Eve of the French Revolution, p. 105. 

2 Aucoc, Conferences, part i. liv. i. cb. i. ; Bceuf, Resume, part iv- 
sec. u. 



56 FRANCE. 

before the ordinary courts.^ In France, on the other 
hand, private law, or the regulation of the rights and 
duties of individuals among themselves, is treated as 
only one branch of jurisprudence; while public law, 
which deals with the principles of government and the 
relations of individuals to the state, is regarded as 
something of an entirely different kind. Of course 
every civilized government must strive to treat all its 
subjects fairly, and hence, in the course of administra- 
tion, questions of justice must arise ; but as these do 
not concern the rights of a man against his neighbor, 
they are not classed in France with private law. It is 
felt that, unlike questions of private law, they ought 
not to be decided solely by the application of abstract 
principles of justice between man and man, but must be 
considered from the broad standpoint of public policy. 
Now the domain of the ordinary French courts is pri- 
vate law alone, and it is quite logical to regard any 
attempt on their part to judge administrative acts and 
thus pass on questions of public policy, as an attempt 
to go beyond their proper sphere of action and invade 
the province of the executive.^ 

The principle of withdrawing questions of public law 
from the ordinary courts was not new. It existed in 

^ This principle, like all others in Anglo-Saxon countries, is not carried 
out with absolute consistency. Thus the various commissions in America 
on railroads, interstate commerce, etc., partake of the nature of the 
French administrative tribunals. 

'■^ The French, like tbe Americans, have not applied their principles 
quite strictly, for Criminal Law ought to be a branch of Public Law 
(Aueoc, Introd. § 1), but it has been put into the charge of the ordinary 
courts. 



THE ADMINISTRATIVE COURTS. 57 

practice under tlie old regime/ but was extended and 
systematized after the Revolution. The protection of 
officials from suit or prosecution was formally incorpo- 
rated into the Constitution of the year VIII. (1799), 
and remained in force until after the fall of Napo- 
leon III., when it was repealed by a decree of the 
Government of the National Defense.^ This decree 
was intended to remove all hindrances in the way 
of bringing government officials before the ordinary 
courts, but it had very little effect, because the Tri- 
bunal of Conflicts held that it applied only to the 
personal protection of officials, and did not affect the 
principle of the separation of powers, which, as un- 
derstood in France, forbids the ordinary judges to 
pass upon the legality of official acts.^ Ques- 
tions of this kind, therefore, are still reserved istrative 
exclusively for the administrative courts, — 
tribunals created especially for this purpose, and com- 
posed of officials in the service of the government. 
Criminal cases are, indeed, an exception to the rule,* but 
this is of no great practical importance, because as force 
is pretty sure to be on the side of the police, it is no 
real protection to the individual to know that he can- 

^ See Laferriere, Traite, llv. i. ; De Tocqueville, An. Reg. et la Rev., 
book ii. ch. iv. ; Varagnac, " Le Conseil cl'Etat," Revue des Deux Mondes, 
Aug. 15, 1892. 

2 Decree of Sept. 19, 1870. 

3 Arret, 30 JuiUet, 1873, " Affaire P^l^tier," Dalloz, Jur. Gen., 1874, 
part iii. p. 5 ; Leferriere, Traite, liv. iii. ch. vii. ; Aucoc, Conf., liv. v. ch. 
ii. ; Goodnow, Comp. Adm. Law, vol. ii. pp. 172-76. 

* Laferrifere, Traite, liv. iii. ch. vi. But even this exception is not 
absolute. See, also, a discussion of the subject in Dalloz, 1881, part iii 
p. 17, note. 



58 FRANCE. 

not be condemned for resistance ; and on the other hand 
the officials concerned run no risk of punishment for 
illegal acts committed in obedience to orders, because 
the government can easily manage to prevent their 
being brought to trial, and can pardon them if con- 
victed. In France, therefore, there is one law for the 
citizen and another for the public official, and thus 
the executive is really independent of the judiciary, 
for the government has always a free hand, and can 
violate the law if it wants to do so without having any- 
thing to fear from the ordinary courts. Nor is the 
danger of interference on the part of the administrative 
tribunals as great as it would be in the case of the 
ordinary judges, because the former can be controlled 
absolutely in case of necessity ; and, in fact, they are 
so much a part of the administration itself that they 
fall into the province of the Interior and not that of 
Justice.^ The independence of the ordinary judges is 
secured by a provision which prevents their removal or 
transfer to another court, without the approval of the 
Court of Cassation, the final court of error. But the 

^ It would be absurd to suppose that the government always extorts 
a favorable judgment. This was clearly shown in 1895, in a once 
famous case, which illustrates at the same time the degree of respect 
entertained for the decisions of the administrative courts. The Minister 
of the Interior and the railroads disagreed about the interpretation of a 
statute relating to the state guarantee of interest on the securities of the 
roads. The matter was brought before the Council of State, which 
decided in favor of the railroad. Thereupon the Minister of the Interior 
resigned, but the rest of the cabinet felt bound to abide by the decision. 
A discussion was, however, raised in the Chamber of Deputies, which in 
effect censured the ministers for submitting the matter to the Council of 
State, and thereby caused the cabinet to resign. 



THE ADMINISTRATIVE COURTS. 69 

. . . ' 

judges of tlie administrative courts enjoy no such pro- 
tection, and can be removed by the President at any 
time.^ The result is that, although a great mass of 
administrative law has slowly grown up from the deci- 
sions of these courts,^ and personal liberty is much 
more respected than under the Empire, yet the courts 
themselves cannot be considered entirely judicial bodies, 
and are far from providing the rights of the citizen with 
a complete guarantee, at least where political questions 
are involved.^ 

1 Aucoe, Conf., vol. i. pp. 156-57; Bceuf, iiesume,pp. 39-40. The mem- 
bers of the Council of State who are qualified to sit as administrative 
judges are said to be always selected from the political friends of the 
government (Dupriez, Les Ministres, vol. ii. pp. 482-83). 

2 Unlike the civil law, the administrative law has never been codified, 
and indeed it could not be without destroying the element of discretion 
which is the reason for its existence. So far as it is not contained in 
statutes and ordinances, it has developed, like the English Common Law, 
by decision and precedent, and hence the sources for studying it are the 
reported cases and the writings of jurists such as those heretofore cited. 

^ Lebon, France as It Is, pp. 101-2; Goodnow {Comp. Administrative 
Law, vol. ii. pp. 220-21, 231) remarks that the administrative courts have 
shown themselves more favorable to private rights than the ordinary 
courts, and in some ways that is certainly true. In English-speaking 
countries a public official can be prosecuted criminally or sued for dam- 
ages in the ordinary courts for any acts done without legal authority, 
whether his action was in the public interest or not. But he is not, as a 
rule, liable for acts authorized by law although his actual motives were 
bad or his discretionary powers misused. Nor is he usually liable for 
negligence in the performance of his duties. The state, on the other 
hand, cannot in theory be sued at all. In practice some means of main- 
taining claims against the state is almost always provided; but only for 
breaches of contract or to recover property, not for torts committed by 
officials. 

In France acts of officials are classified in quite another way with very 
different results. First, there are personal acts, which involve grave per- 



60 FRANCE. 

It Is evident that with two sets of courts, neither of 
The Court which is superlor to the other, disputes about 
of Conflicts, jurisdiction must constantly arise. Such is in 

sonal iiiisconduet or gross negligence on the part of the official, whether 
beyond or within his legal authority. For these, and these alone, he is 
liable in damages in the ordinary courts. Whatever he does in good faith 
for the public interest, whether within or beyond his legal authority, is an 
act of administration for which a remedy, if any, can be sought only 
against the state, and as a rule only in the administrative courts. Acts 
of this kind fall into three classes, called, actes de gestion, actes d'authorite 
and actes de gouvernement. Broadly speaking, actes de gestion are acts 
done in the course of the business administration of the public ser- 
vices, and the administrative courts tend to award compensation against 
the state for acts of this nature, not only when done wholly without 
legal authority, but also when there has been an abuse of that author- 
ity for improper purposes, or even negligence, as, for example, where 
a merchantman has been damaged by collision with a warship. (See 
a discussion of this whole subject in Hauriou La Gestion Administra- 
tive). Actes d'authorite are done in the exercise of the right of the state 
to issue commands to its citizens; and if such commands, orders or regu- 
lations are issued without legal authority, or involve an abuse of power, 
they can be annulled by a special procedure in the Council of State, which 
may incidentally award compensation. Finally actes de gouvernement, that 
is acts done for reasons of state with a view to the public safety, whether 
within the legal power of the government or not, lie beyond the juris- 
diction both of the ordinary and the administrative courts; but there is a 
distinct tendency to restrict this principle to an ever-narrowing field. 

It is obvious that while the French system does not hold the official to 
a rigid conformity with law, it often gives compensation from the public 
treasury for tortious acts of officials when in England or America there 
would be no redress, or only an action against an official who might be 
unable to pay the damages. 

It is somewhat curious in this connection to observe that French 
writers often assert the inability of an ordinary court to protect the pub- 
lic against illegal ordinances, because it can only decide the case at bar, 
whereas an administrative court has power to annul the ordinance alto- 
gether; a remark which shows an entire failure to comprehend the force 
of precedent in a judicial system like that of England. (See, for example, 



THE ADMINISTRATIVE COURTS. 61 

fact the case, and a special tribunal has been appointed 
to determine these disputes, or conflicts as they are 
called.^ It is composed of the Minister of Justice, of 
three members of the highest court of law, the Court of 
Cassation, of three members of the highest administra- 
tive court, the Council of State (each of these sets being 
selected by their own court), and of two other persons 
elected by the foregoing seven. All the members are 
chosen for three years, except the Minister of Justice. 
This officer has the right to preside, and thus his pres- 
ence gives to the administration a majority in the tri- 
bunal. A striking example of the working of the sys- 
tem was presented in 1880, when the government issued 
decrees for the suppression of all monastic orders not 
authorized by law. There seems to have been grave 
doubt about the legality of the decrees, and the victims 
brought suits in the ordinary courts in several parts of 
France. Most of these courts held that they were 
authorized to entertain the suits, and in some cases they 
went so far as to order the persons who had been ex- 
pelled from their establishments to be restored to pos- 
session pending the trial ; ^ but the government raised 
the question of jurisdiction, and the Tribunal of Con- 

Varagnac, " Le Conseil d'Etat," Revue des Deux Mondes, Sept. 15, 1892, 
pp. 290-91.) 

An admirable comparison of the English and French systems may be 
found in Professor Dicey's Law of the Constitution, and especially iu 
chapter xii. 

1 Aucoc, Con/., vol. i. § 406; Boeuf, Resume, 15th ed. pp. 542-43. 

2 Some of the decisions to this efPect may be found in Dalloz, Jurispru- 
dence Generale, 1880, part iii. pp. 57-62, and 80. In the note to page 57 
there is a list of some of the other similar decisions and a discussion of 
the law. 



62 FRANCE. 

flicts decided that the ordinary courts were not compe= 
tent to deal with the matter.^ It is a significant fact, 
which seems to show a lack of confidence in the impar- 
tiality of the administrative courts, that the persons 
inJTired did not bring the question of the legality of 
the decrees before the Council of State.^ 

When an ordinary court has assumed jurisdiction of 
a case, the question of competence can be raised only 
by the prefect, and not by a party, for the principle 
that the ordinary courts cannot determine the legality 
of official acts is intended solely as a protection to the 
administration .^ 

It is not quite accurate to say that the ordinary 
Jurisdiction courts cau cousider the validity of no official 
minktn^ive ^^^} ^1^^? iudccd, the line between the juris- 
courts. diction of the ordinary and the administrative 

courts does not follow any strictly logical principle.^ 
Questions of indirect taxes, for example, and those 
relating to the lesser highways (petite voirie), come 
before the ordinary courts, while those arising under 
the direct taxes, or relating to the greater highways 
(grande voirie), come before the administrative tribu- 
nals. The competence of the various administrative 

1 Arrets de Nov. 4, 5, 13, 17, and 20 ; Dalloz, 1880, part iii. pp. 121- 
32. These cases are reported with unusual fullness. 

2 At least I can find no decision on the subject by the Council of State 
reported in Dalloz. For criticisms on the conduct of the government, 
see Jules Simon, Dieu, Patrie, Liberie, ch, vi. ; and Chaunes, Nos Fautes, 
letters of July 12 and Oct. 27, 1880. 

3 Aucoc, Con/., vol. i. § 404; Bceuf, Resume, 15th ed. p. 547. 

* On this subject, see Laferri^re's great work, Traite de la Jurisdiction 
Administrative. 



THE ADMINISTRATIVE COURTS. 63 

courts is no less complicated. The prefect and the 
mayor have each a very limited jurisdiction. That of 
the prefectorial councils, on the other hand, is very con- 
siderable, although as a matter of fact these councils 
are occupied almost altogether with questions of taxes, 
and in these, as a rule, they follow the advice of the 
assessors.^ But by far the most important administra- 
tive court is the Council of State, which has a special 
section or committee to attend to the contentieux, as 
this class of litigation is called. The Council not only 
hears appeals from the lower administrative tribunals, 
but has also original jurisdiction in many important 
cases, and in fact recent practice is tending to estabhsh 
the principle that the Council of State is the judge of 
all administrative matters in the absence of special pro- 
visions of law. The number of cases brought before 
it is very large, and has increased so rapidly that the 
section for the contentieux is badly in arrears, and it 
has been proposed to create a second section to relieve 
the pressure.^ 

Such is the legal position of the administration in 
ordinary times, but in case of war or insurrec- -jj^g ^^^^^ ^^ 
tion it can be given far greater powers, by a ^^^^®' 
proclamation of the state of siege. This can be made 
by statute, or if ParHament is not in session, it can be 
made by the President ; but in that case, in order to 
meet the danger of a coup d'etat, which is ever present 

^ Vicomte d'Avenel, " La Rdf orme Administrative — La Justice," Revue 
des Deux Mondes, June 1, 1889, p. 596. 

2 For the number of cases decided by the administrative courts, see 
the tables (through 1886) in Laferriere, liv. i. ch. v. 



64 FRANCE. 

to the eyes of Frenchmen^ it is provided tliat the Cham= 
bars shall meet as of right in two days.^ Within the 
district covered by the state of siege, the military courts 
can be given criminal jurisdiction, and can punish any 
offenses against the safety of the Republic or the general 
peace. They can search houses by day or night, expel 
from the district any non-residents, seize all arms, and 
forbid any publications or meetings which are liable to 
disturb the public order.^ 

I have dwelt at some length on what, from an 
Effect of the Auglo-Saxou poiut of view, may well be called 
tem^onthe' ^^^^ legislative and judicial powers of the 
the^exeeu- exccutive in France, because these things are 
^^^' entirely foreign to our own political ideas and 

experience, and because they exist in some form in 
almost every country on the continent of Europe. 

When we consider the paternal character of the 
government, the centralization of the state, and the 
large share of authority vested in the executive depart- 
ment, we cannot fail to see that the ministers in whose 
hands this vast power is lodged must be either very 
strong or very weak. If they are able to wield it as 
they please, and are really free to carry out their own 
policy, they must be far stronger than any officer or 
body in Great Britain, and immeasurably stronger than 
any in our federal republic. But, on the other hand, 
the very immensity and pervasiveness of their power, 
the fact that it touches closely every interest in the 
country, renders them liable to pressure from all sides. 

1 Law of April 3, 1878, Poudra et Pierre, § 79. 

2 Poudra et Pierre, § 76, gives the text of the law. . 



EFFECT OF THE FRENCH SYSTEM. 65 

It becomes important for every one to influence their 
action, provided lie can get a standpoint from which 
to bring a pressure to bear. This standpoint is fur- 
nished by the Chamber of Deputies, for the existence 
of the ministry depends on the votes of that body. 
The greater, therefore, the power of the minister, and 
the more numerous the favors he is able to bestow, the 
fiercer will be the struggle for them, and the less will 
he be free to pursue his own policy, untrammeled by 
deputies, whose votes he must win if he would remain 
in office. A Frenchman, who is eminent as a student 
of political philosophy, and has at the same time great 
practical experience in politics, once remarked to the 
author, " We have the organization of an empire with 
the forms of a republic." ^ The French administrative 
system is, indeed, designed for an empire, and would 
work admirably in the hands of a wise and benevolent 
autocrat who had no motive but the common weal ; but 
when arbitrary power falls under the control of popular 
leaders, it can hardly fail to be used for personal and 
party ends ; for, as a keen observer has truly said, the 
defect of democracy lies in the fact that it is nobody's 
business to look after the interests of the public.^ 

^ Gneist expresses the same idea : " Es entsteht der unvermittelte Gegen- 
satz einer repuUikanisch gedachten Verfassung mit einer absolutistisch orga- 
nisirten Verwaltung." (Die Preussiscke Kreisordnung, p. 7.) 

^ The late Professor Gneist, perhaps the most profound student of the 
comparative history of England and the continent, from the point of 
view of the working of parliamentary government, demonstrated that the 
success of the system in England has been due to certain underlying 
institutions which have made that country a commonwealth based upon 
law (Rechtsstaat). His chief works on the subject are his Englische 
Verwaltungsrecht j Self-government, etc., in England; Der Rechtsstaat, and 

VOL. I. 



66 FRANCE. 

Verwaltung, Justiz, RecJitsweg. In tlie opening words of the preface to 
the last of these, the keynote of the whole theory is struck when he says, 
" Die parlamentarische Regierung Englands ist eine Regierung nach Gesetzen 
und durch Gesetze." 

His views may be briefly summarized as follows : In England alone, 
among the countries of Europe, the royal power became consolidated 
early, for the Norman kings broke down the resistance of the great 
vassals and made their authority effective over the whole realm, drawing 
military, judicial, and police matters into their own hands. By this 
process, the antagonism and jealousy of the dift'erent classes was crushed ; 
while the land-owning nobility found their only chance of political activity 
in exerting a restraint upon the crown by means of judicial action and 
statutes. Their first great achievement was Magna Charta, with which the 
parliamentary era begins. The struggle was continued in the Barons' 
war, and resulted in the evolution of the House of Commons. 

From time to time Parliament enacted statutes which supplemented 
the customary law, and furnished a solid basis for the decisions of the 
courts. The existence of permanent statutes, as distinguished from royal 
edicts in their nature changeable, is one of the chief foundations of the 
reign of law in England, for the statutes in ever increasing quantity regu- 
lated the administration rigorously and uniformly throughout the land. 

Another factor that contributed to the same result was the method in 
which the statutes were executed, and this in turn may be traced to the 
early extension of the royal power. The administrative laws were 
carried out by means of a large number of officers, of whom the most 
important were the justices of the peace. These were appointed by the 
king, and hence acted in behalf of the state instead of local or class 
interests ; but, on the other hand, they were in fact the greater land- 
owners of the county, not professional officials bound to do the bidding of 
the court. They conducted the local administration according to judicial 
forms, subject on purely legal questions to the control of the King's 
Bench by means of writs of Certiorari, Mandamus, etc., the effect being to 
prevent arbitrary abuse of power, and to insure legality in the execution 
of the law. In short, as Gneist expresses it, the English developed an 
elaborate and effective system of administrative justice. 

The method of administration also produced self-government, by which 
Gneist means not the control of local matters by bodies elected to repre- 
sent local interests, but an organization of the whole community for the 
service of the state, so arranged that the classes most capable by their 
wealth and position for government bore the burdens and administered 
the affairs of their neighborhood. The result was brought about in 



NOTE OF THE VIEWS OF GNEIST. 67 

England cliiefly by means of the office of justice of the peace, which 
gradually became both an honor and a duty attached to the ownership of 
land. Thus the gentry carried on the local government ; but this was 
no mere privilege which they enjoyed for their own benefit, because they 
also paid the taxes and ruled, not for the profit of their own class, but as 
officers of the state for the common good and in strict accordance with 
fixed laws. Hence, instead of the hostility of classes that existed all over 
the continent, there developed harmonious local communities with true 
public opinions on political questions. Moreover, the habit of sitting as 
justices gave to the gentry a sense of public duty and a love for law. 
Now the House of Commons was virtually composed of the representa- 
tives of the gentry, who carried into it their sentiments. The members 
of Parliament, therefore, understood law, and had a deep sense of its 
importance, while their training caused them to act for the good of the 
whole state rather than the benefit of their own class. This rendered 
possible the formation of real national parties, based on differences of 
opinion, not on class interests ; parties whose action in Parliament v/as 
restricted by a respect for law. 

Gneist points out how different has been the history of France. 
Feudalism there was at first too strong for the royal power to overcome, 
and hence the community, instead of being consolidated, split into hostile 
classes. The king found himself at the head of a state whose organiza- 
tion was so loose and inefficient as to be incapable of natural develop- 
ment. As soon as he was able, he began to create in the royal domains 
better military, financial, police, and judicial systems. The old institutions 
having gained no strength in the mean while were unable to stand against 
the new and more effective ones, which gradually spread over the whole 
of France. The new ones, however, were not combined with the old, but 
substituted for them ; and thus the power both of the vassals and of the 
estates was crushed by the royal supremacy. In fact, the political and 
social organization of the country became entirely unlike. Socially, 
the nation was still divided into the classes whose selfish antagonism had 
made possible the triumph of the crown. Politically, absolute power 
had become vested in the king, who ruled by means of a paid corps of 
officials without ties with the local communities, unrestrained by perma- 
nent statutes, and dependent solely on his pleasure. The French Revolu- 
tion did not essentially change this state of things. It did not create a 
new organic political structure of the community, but merely transferred 
the royal power to the people, or rather to those partigular interests 
among the people that were able to acquire ascendency for the moment, 
and these were no more inclined to place restraints on their own omnipo- 



68 FRANCE. 

tehee than the king had been before. While, therefore, private law was 
just and strong, public law was weak and unstable ; and as public law is 
the foundation of political society, Gneist regards France as the very 
negation of a commonwealth based upon law- 
German history followed very much the same course during the 
Middle Ages, but at their close the central power was not strong enough 
to enforce obedience and consolidate the empire. Hence the supremacy 
of the crown developed at a still later time, after the centrifugal forces 
had grown so powerful that the principalities had become well-nigh 
independent. Then the princes overcame within their territories the 
resistance of the estates as the king had done in France. In Germany, 
however, and especially in Prussia, the bureaucracy was so ordered as to 
furnish a better protection to individual rights and a firmer maintenance 
of law. But this broke down with the spread of French ideas after 1848, 
when the antagonistic interests in the state, taking advantage of the 
parliamentary system, abused the administrative power and introduced 
a veritable party tyranny. 

Gneist considered the subsidiary framework of the English institutions, 
and especially the justices of the peace, as the foundation of the legal 
character of the government, and hence of the success of the parlia- 
mentary system. But he did not realize that the keystone of the whole 
structure is the ultimate decision by the courts at Westminster of all 
questions of law that arise in the course of the administration. He did 
aot see that the legal spirit pervading the system is the result of giving 
to public law the sacredness and inflexibility that pertains to private law, 
and that this end is reached by fusing the two together, and confiding 
them both in the last resort to the same courts. On the contrary, he 
believed that public and private law ought to be kept distinct, and he 
approved of the practice of placing the former in the hands of special 
administrative tribunals. The germs of such a system appeared for a 
moment in England when the Star Chamber began to act as a supreme 
administrative court ; but one cannot help feeling that if this procedure 
had become permanent, public law would have been much less rigidly 
interpreted than it was by the King's Bench, that the administration 
would have become more discretionary, and that the strict, rigorous, 
legal spirit of the system would have been lost. 

It may be added that Gneist considered the English government at 
its highest perfection under George III. In his opinion, the reform bill 
of 1832, the extension of the franchise in 1867, and still more the recent 
changes in local government, have been a departure from historic prin- 
ciples, and have tended by disorganizing the state to bring about a strife 
of parties and reduce England to the condition of other nations. 



CHAPTER n. 

FRANCE : PARTIES. 

For more tlian a hundred years it has been the habit 
to talk of government by the people, and the 

1 Pill T^^Q influ- 

expression is, perhaps, more ireeiy used to-day ence of par- 

1 IP p • 1 1 *^^^ ^" popu- 

than ever before, yet a superficial glance at largovem- 
the history of democracy ought to be enough 
to convince us that in a great nation the joeople as a 
whole do not and cannot really govern. The fact is 
that we are ruled by parties, whose action is more or 
less modified, but never completely directed, by public 
opinion. Rousseau, indeed, shadowed forth a great 
truth, when he declared that no community could be 
capable of a general will — or as we should express it, 
of a true public opinion — where parties or sects pre- 
vailed;^ and our own experience of popular government 
will quite justify us in saying that public opinion is 
always more or less warped by the existence of party 
ties. A study of the nature and development of parties 
is, therefore, the most important one that can occupy 
the student of political philosophy to-day. Asa rule 
Among Anglo-Saxon peoples, who have had oniy^two^ 
a far longer experience in self-government Angkf-™ 

,1 j_ j^i j_i n j^ Saxon coun- 

than most other races, there are usually two tries, but 

. ,• I'lT jp j -jI several else- 

great parties which dispute tor mastery m the where. 

^ Contrat Social, liv. ii. ch. iii. 



70 FRANCE. 

state. But in the countries on the continent of Europe 
this is not usually true. We there find a number of 
parties or groups which are independent of each other 
to a greater or less extent, and form coalitions, some- 
times of a most unnatural kind, to support or oppose 
the Pfovernment of the hour. Now the existence of 
several distinct political groups has a decisive influence 
on the working of the parliamentary system. Let us 
consider this question a moment. 

When a country with a parliamentary form of gov- 
ernment is divided into two hostile parties, 
parliament- tlic miuistors who lead the majority of the 

ary system iii p ii n 

there are popular cliamber must 01 course belong all to 

normally 

only two one of tliose parties, or all to the other, and 

parties. 

they are forced by circumstances to work in 
harmony. But even when party strife is less bitter, 
and parties have begun to break up, experience has 
proved that the best policy for the ministers is to sup- 
port each other and stand or fall together. Lord Mel- 
bourne is reported to have exclaimed at a cabinet meet- 
ing, after a discussion on the question of changing the 
duty on corn, " Now is it to lower the price of corn, or 
is n't it ? It is not much matter which we say, but 
mind, we must all say the same." ^ The statesmanship 
implied by this remark may not have been of the high= 
est kind, but the politics were sound, and showed a 
knowledge of the great secret of success. It is, indeed, 
an axiom in politics that, except under very peculiar 
circumstances, coalition ministries are short-lived com- 
pared with homogeneous ones, whose members are in 



BageLot, English Constitution, p. 16, note. 



PARTIES IN THE PAELIAMENTARY SYSTEM. 71 

cordial sympathy with each other. Now so long as the 
ministers cling together, every member of the House 
must consider the cabinet and its policy as a whole, and 
make up his mind whether he will support it, or help 
to turn it out and put in an entirely different set of 
ministers with another poHcy. He cannot support the 
cabinet on certain questions and oppose it on others. 
jHe must sacrifice details to the general question. The 
result is that the members either group themselves 
about the ministers, and vote with them through thick 
and thin, or else they attach themselves to an opposi- 
tion party, whose object is to turn out the cabinet, and 
then take of&ce itself and carry on a different policy. 
The normal condition of the parliamentary system, 
therefore, among a people sufficiently free from preju- 
dices to group themselves naturally, and possessing 
enough experience to know that the practical and 
attainable, and not the ideal, is the true aim in politics, 
is a division into two parties, each of which is ready to 
take of&ce whenever the other loses its majority. This 
has been true in England in ordinary times, and 
although of late years it has been frequently asserted 
that the two great parties in the House of Commons 
are destined to come to an end, and be repla,ced by a 
number of independent groups, the prophecy does not 
accord with experience. It is based on the state of the 
Parliament of 1892, and seems to arise from mistaking 
a temporary poHtical condition for a permanent one. The 
sudden interjection of the question of Home Rule into 
English politics caused a new party division on fresh 
lines, which necessarily broke up the traditional associ' 



72 FRANCE. 

ations of public life, and threw both parties into a state 
of confusion that has not yet disappeared. On one 
side, the opponents of the measure were composed of 
men whose habits of thought had been most diverse ; 
while the followers of Mr. Gladstone, on the other side, 
included many Liberals who were forced, against their 
will, to subordinate to Home Rule other matters which 
they deemed more important. In short, the introduc- 
tion of a new issue shattered the old basis of cleavage; 
and it is not surprising that new, solidified parties were 
not formed in an instant. Moreover it may be noticed 
that although the Liberal groups in the late House of 
Commons talked freely of their dissensions, they acted 
as a single party, and supported the cabinet by their 
votes with astonishing fidelity. 

A division into two parties is not only the normal 
result of the parliamentary system, but also 

It cannot . , ,. . „ . „ 

work well an essential condition oi its success, feup- 
pose, for example, that a third party, like that 
of the Irish Home Rulers under Parnell, is formed, and 
places some one specific issue above all others, with the 
determination of voting against any cabinet that does 
not yield to its demands on that point; and suppose 
this body becomes large enough to hold the balance 
of power. If, in such a case, the two old parties do 
not make a coalition, or one of them does not absorb 
the new group by making concessions, no ministry will 
be able to secure a majority. Every cabinet will be 
overthrown as soon as it is formed, and parliamentary 
government will be an impossibility. Now suppose that 
the third party, instead of being implacably hostile to 



TWO PARTIES ESSE5TTIAL. 73 

both the others, is willing for a time to tolerate a cabi- 
net from one of them, — is willing, in short, to allow the 
ministers to retain office provided they give no offensCc 
Under these circumstances parliamentary government 
is not impossible, but it is extremely difficult. The 
ministers are compelled to ride two horses at once. 
They must try to conciliate two inharmonious bodies of 
men, on pain of defeat if either of them becomes hos- 
tile ; and hence their tenure is unstable and their course 
necessarily timid. Now the larger the number of dis- 
cordant groups that form the majority, the harder the 
task of pleasing them all, and the more feeble and 
unstable the position of the cabinet. Nor is the diffi- 
culty removed by giving portfolios to the members of 
the several groups ; for even if this reduces the labor of 
satisfying the parties, it adds that of maintaining an 
accord among the ministers themselves, and entails the 
proverbial weakness of coalition governments. A cab- 
inet which depends for its existence on the votes of 
the Chamber can pursue a consistent policy with firm- 
ness and effect only when it can rely for support on a 
compact and faithful majority; and therefore the par- 
liamentary system will give the country a strong and 
efficient government only in case the majority consists 
of a single party. But this is not all. The opposition 
must also be united. So long as the ministry stands, 
the composition of the minority is, indeed, of little con- 
sequence ; but when that minority becomes a majority, 
it must in turn be a single party, or the weakness of a 
coalition ministry cannot be avoided. It follows that a 
division of the Chamber into two parties, and two par 



74 FRANCE. 

ties only, is necessary in order that the parliamentary 
form of government should permanently produce good 
results. 

In France the parliamentary system has not worked 

well, because this condition has not been ful- 

tionhasnot filled.^ The various groups of Monarchists 

filled in and Bonapartists have toerether formed in the 

France. ^ ® . . 

Chambers the party of the Reactionaries, or 
as it is more commonly called, the Right.^ The rest of 

^ This is recognized by many French writers, e. g., Lamy, La Repub- 
lique en 1883 ; Paul Laffitte, Le Suffrage Universel et la Re'gime Parlementaire, 
pt. i. ch. iii. ; Saleilles, in the Annals of the American Academy of Political 
Science, July, 1895, pp. 57, 64, 65. But the reason for the existence of a 
number of groups in France seems to be only partially understood. The 
most clear-sighted writer on this subject is Dupriez. (See Les Ministres, 
vol. ii. pp. 363-65, 370-71, and 386-95.) 

^ For readers unfamiliar with European politics it may perhaps be 
necessary to explain the meaning of the terms Right and Left, as they 
are used all over the Continent. In England a broad aisle runs from the 
Speaker's desk through the middle of the House of Commons to the main 
entrance opposite, and the benches of the members are arranged parallel 
to this aisle and facing it. The Ministry sit on the front bench at the 
right of the Speaker (the so-called Treasury Bench), their supporters 
taking seats behind and alongside of them, while the opposition sit on the 
left side of the House. The Liberals and Conservatives, therefore, are 
each to be found sometimes on one side of the House and sometimes on 
the other, according as their party is in power or not. But on the Conti- 
nent the seats are arranged, as a rule, like those of a theatre, as in our 
legislative bodies, the ministers usually sitting immediately in front of 
the Speaker or President, on a bench which sometimes faces him and 
sometimes looks the other way, while the conservative members sit on 
the President's right, the more liberal next to these, and the radical on 
his left. As this arrangement is permanent, the words Right and Left 
have come to be generally used for Conservative and Liberal ; and the 
diiferent groups are often designated by their position in the Chamber, 
as the Right, the Centre, and the Left Centre, the Left, or the Extreme 
Left. _ 



MANY GROUPS IN FRANCE. 75 

the members have been supporters of the Republic, and 
have formed nominally a single party, but they have 
really been held together only by a desire to maintain 
the existing form of government, and have seldom 
acted in concert except when they thought that threat- 
ened. They have always comprised men of every shade 
of opinion, from conservatives to radicals and even 
sociahsts, and would speedily have broken up into com- 
pletely hostile parties, if it had not been for the fear 
of the Reactionaries. Even under the pressure of this 
fear their cohesion has been very slight, for they have 
been divided into a number of groups with organiza- 
tions which, though never either complete or durable, 
have been quite separate ; and again, these groups have 
often been subdivided into still smaller groups, whose 
members were loosely held together by similarity of 
opinions or desire for advancement, usually under the 
standard of some chief, who held, or hoped to win, a 
place in the cabinet. In fact, the parties in the Cham- 
ber of Deputies have presented such a series of dissolv- 
ing views that it is very difficult to draw an intelligible 
picture of them.^ 

1 The line of cleavage between the monarchists and republicans has now 
ceased to be of much importance. All the larger factions now profess to 
be republican. These factions are constantly gaining or losing members so 
that it is almost impossible to state their exact numerical strength at any- 
one time. Sometimes it happens, indeed, that a member of the Chamber 
may profess to belong to two political groups at the same time. No single 
faction ever forms a majority of the Chamber so that a coalition or Hoc 
is necessary. The following groups at present make up the Chamber of 
Deputies but their names afford, for the most part, no indication of the 
principles to which they give allegiance : Conservatives (or members of 
the extreme Right) ; Nationalists (members of the Action Libdrale 



76 FRANCE. 

During ttie struggle with MacMahon, the Republicans 
had been solidly united, but the danger had not passed 
very long before the Radicals began to show themselves 
independent. They soon became quite ready to upset 
any ministry that offended them, and in fact cabinet after 
cabinet was overthrown by the votes of the Right and 
the Extreme Left. Even Gambetta, who had striven to 
keep the Republicans together, did not escape this fate, 
in spite of his immense popularity both in the country 
and in the Parliament. He did not consent to form a 
ministry until November, 1881 ; and after holding office 
only two months and a half, he was forced to resign by 
the refusal of the Chamber to introduce the scrutin de 
liste for the election of deputies. He lived only till 
the end of the year, and his death deprived France of 
her only great popular leader. After his fall, politics 
followed the old course, and there passed across the 
stage a series of short-lived ministries. 

During the last few years there has indeed been a 
nearer approach to a division of the deputies into two 
great parties — one Conservative and the other Rad- 
ical — than at any other time since the birth of the 
Republic; and yet the history of the successive minis- 
tries during the life of the later Chambers makes 
it clear with how little sharpness the lines are drawn, 
and how little the members of the various groups 



populaire) ; Progressives ; Republicans (or Moderates) ; Radicals ; 
Radical-Socialists ; Independent Socialists ; and Independents. The 
first three groups make ixp the Right ; the last five usually make up 
the Left; but some of the smaller groups keep shifting from side to 
side. 



CAUSES OF THE STATE OF PARTIES. 77 

that compose the majority can be relied upon to be 
faithful to the cabinet. In short, there has been an 
approach to the system of two parties, but as yet 
not a very near approach, and the numerous de- 
tached groups still remain the basis of parliamentary 
life. 

Let us now consider the reasons for the subdivi- 
sions of the Chamber into a number of ^ 

Causes of 

groups. And first we must look at a source the existence 
of political dissensions with which we are parties in 
not familiar at home, but which is to be 
found in almost every nation in Europe. 

Few persons ever ask themselves why the bodies of 
men who assemble every year at the State 

The lack of 

House or the Capitol have power to make apouticai 

consensus 

laws. It is not because they have more per- 
sonal force or wisdom or virtue than any one else. A 
congress of scientific men may contain all these quali- 
ties in greater abundance, but it cannot change a single 
line in the statute-book. Is it because they represent 
the people? But we all know that they occasionally 
pass laws which the people do not want, and yet we 
obey those laws without hesitation. Moreover, this 
answer only pushes the question one step further back, 
for why should we obey the people ? A few centuries 
ago nobody recognized any right on the part of the 
people to govern or misgovern themselves as they chose, 
or rather on the part of the majority to impose their 
wiU on the minority ; and in many countries of the 
world no such right is recognized to-day. How does it 
happen that there is not a class of men among us who 



78 FRANCE. 

think tliat the legislature does not fairly represent the 
people, or who think that the right to vote ought to be 
limited by a certain educational or property qualifica- 
tion, or by the profession of a certain creed ; and why 
does not some such class of men get up a rival legisla- 
ture ? The fact is that, while we may differ in regard 
to the ideal form of government, we are all of one mind 
on the question of what government is entitled to our 
actual allegiance, and we are all determined to yield to 
that government our obedience and support. In short, 
a common understanding or consensus in regard to the 
basis and form of the government is so universal here 
that we feel as if it were natural and inevitable; but 
in all countries this is not so. Such a consensus is the 
foundation of all political authority, of all law and 
order ; and it is easy to see that if it were seriously 
questioned, the position of the government would be 
shaken, that if it were destroyed, the country would 
be plunged into a state of anarchy. Now persons who 
do not "^ accept the consensus on which the political 
authority of the day is based are termed in France 
Irreconcilables. Men of this sort do not admit the 
rightfulness of the existing government, and although 
they may submit to it for the moment, their object 
is to effect a revolution by peaceful if not by violent 
means. Hence their position is essentially different 
from that of all other parties, for these aim only at 
directing the policy of the government within constitu- 
tional limits, and can be intrusted with power without 
danger to the fundamental institutions of the nation, 
while the Irreconcilables, on the contrary, would use 



LACK OF A CONSENSUS. 79 

their power to upset those institutions, and therefore 
cannot be suffered to get control of the state. They 
form an opposition that is incapable of taking office, 
and so present a disturbing element, which in a parUa- 
mentary form of government throws the whole system 
out of gear.^ 

Another thing to be noticed about a consensus is 
that it cannot be created artificially, but must ^ consensus 
be the result of a slow growth and long tra- ^6^^^ 
ditions. Its essence lies in the fact that it is ^^p^^^^- 
unconscious. The people of the United States, for 
example, could not, by agreement, give to a dictator the 
power the Czar wields in Russia, for except in the pres- 
ence of imminent danger he would have no authority 
unless the people believed in his inherent right to rule, 
and the people cannot make themselves believe in any 
such right simply by agreeing to do so. The r^j^^ French 
foundation of government is faith, not rea- dettroyed'^ 
son, and the faith of a people is not vital clfconsen-^" 
unless they have been born with it.^ Now, ^'^^^ 

* It is impossible to draw a sharp line between what is revolutionary 
and what is not ; or to define exactly an Irreconcilable. The matter 
depends in fact upon the opinion of the community. Thus, before 1886, 
Home Rule might fairly be said to have been revolutionary, and the 
Irish Home Rulers to have been Irreconcilables ; but after Mr. Gladstone 
made Home Rule a practical question in English politics, it would have 
been absurd to call Parnell's followers Irreconcilables. 

2 Curiously enough an exception to this principle, and almost a solitary 
one, is to be found in the history of the United States. The generation 
that framed the Constitution looked upon that document as very imper- 
fect, but they clung to it tenaciously as the only defense against national 
dismemberment, and in order to make it popular, they praised it beyond 
their own belief in its merits. This efEort to force themselves to ad- 
mire the Constitution was marvelously successful, and resulted, in the 



80 FRANCE. 

in France, tlie Revolution of 1789 destroyed all faith in 
the political institutions of the past, and was unable to 
substitute anything else. It did, indeed, give birth to 
a code of law, and to an administrative system, both of 
which have taken a strong hold on the nation, and have 
survived every change in the government. These are 
the permanent elements in France, and the only ones 
that have acquired the blind force of tradition. They 
supply a machinery that is unshaken by political up- 
heavals, and it is this that has made it possible for the 
country to pass through so many revolutions without 
falling into a state of anarchy.^ But in regard to in- 
stitutions of a purely pohtical character, the nation 
has not been so fortunate, for the governments that 
followed the Revolution were not sufficiently durable 
to lay even a foundation for a general consensus, and 
the lack of continuity has so thoroughly prevented the 
steady growth of opinion that the people have not 
succeeded in acquiring a political creed. The 

The effect t • ^ p r> i 

of tins on result IS that every lorm oi government that 

parties. . . . 

has existed m J^ ranee has its partisans, who 
are irreconcilable under every other ; while the great 
mass of the middle classes and the peasants have no 
strong political convictions, and are ready to support 
any government that maintains order. Thus the two 
Empires bequeathed to the Republic the group of Bona- 
partists, while the Monarchists are a legacy from the 
old regime and the reign of Louis Philippe. At pres- 

next generation, in a worship of the Constitution, of which its framera 
never dreamed. 

1 Cf. Laffitte, pp. 208, 209. 



POLITICAL OPINIONS THEORETICAL. 81 

ent it seems altogether probable that, if no great 
European crisis occurs, the Right will end by accept- 
ing the Republic, and if so the irreconcilable elements 
will disappear or become insignificant, and one of 
the chief obstacles to the formation of two great 
parties, one Conservative and the other Radical, will be 
removed. 

But this is only one of several obstacles, and the 
others are so great that it will probably be a other causes 
long time before the system of groups breaks dhfsfonof 
down in France, or is replaced by that of two p*^^*^®^- 
political parties. 

In the first place, the Frenchman is theoretical rather 
than practical in politics. He is incHned to 

. 1 1 . . 1 . , . Theoretical 

pursue an ideal, striving to realize nis concep- character of 
tion of a perfect form of society, and is re- political 

„.„,-, opinions. 

luctant to give up any part of it for the sake 
of attaining so much as hes within his reach. Such 
a tendency naturally gives rise to a number of groups, 
each with a separate ideal, and each unwilling to make 
the sacrifice that is necessary for a fusion into a great 
party. In short, the intensity of political sentiment 
prevents the development of real political issues. To 
the Frenchman, public questions have an absolute 
rather than a relative or practical bearing, and there- 
fore he cares more for principles and opinions than 
for facts. This tendency is shown in the programmes 
of the candidates, which are apt to be philosophic docu- 
ments instead of statements of concrete policy, and, 
although published at great length, often give a com- 
paratively small idea of the position of the author on 



82 FRANCE. 

the immediate questions of the day.^ It is shown also 
in the newspapers, and the use that is made of them. 
An Anglo-Saxon reads the newspapers chiefly for infor- 
mation about current events, and as all the papers 
contain very much the same news, he habitually reads 
only one. But the French papers contain far less 
news, and as the Frenchman reads them largely for the 
sake of the editorials, he commonly reads several in 
order to compare the opinions they express. 

It is partly on account of this mental attitude, and 

partly owing to the absence of the habit of 
do not self-government, and the lack of sympathy 

readily in bctwcen different parts of the country, that 

the French do not organize readily in politics. 
This is the more curious because in mihtary matters 
they organize more easily than any other people in the 
world ; and it is no doubt the military instinct, as well 
as the want of confidence in their own power of po- 
litical organization, that disposes them to seek a leader 
and follow him blindly after he has won their confi- 

^ Lebon, France as It Is, p. 85. 

Abstracts of all the electoral programmes issued by the successful 
candidates for the Chamber of Deputies at the elections of 1889 and 
1893, together with the results of the ballots, have been published 
by Duguet, under the title Les Deputes et les Cahiers Electoraux. These 
volumes are very instructive ; and a perusal of them shows that the 
programmes of the Radicals are much longer and less vague than 
the others, but often demand measures which lie out of the domain 
of practical politics, such as revision of the Constitution, abolition of 
the Senate, abolition of state aid to the churches, confiscation of all 
ecclesiastical property, elective judiciary, etc. The programmes give a 
very good idea of the candidate's general turn of mind ; and those of 
the Radicals may be said to contain their conception of the ideal state 
of polities or of society. The Radicals are, indeed, the only group among 



PARTIES LITTLE ORGANIZED. 83 

dence.^ The inability to organize readily in politics 
has this striking result, that vehement as some of the 
groups are, and passionate as is their attachment to 
their creeds, they make little effort to realize their aims, 
by associating together their supporters in all parts of 
the country for concerted action. In fact, there may 
be said to be no national party organizations in France.^ 
The various groups into which the deputies are divided 
have, as a rule, no existence whatever outside of Par- 
liament, the candidates for seats merely calHng them- 
selves in general terms. Moderates, Radicals, Socialists, 
or simply Republicans without further qualification, and 
attaching themselves to a particular group after the 
Chamber has met. Moreover, the programmes, which 
are drawn up by each candidate for himself, are only 
individual confessions of faith, and are all different, so 
that there is no policy which any party as a whole is 
pledged to support. Before the opening of the cam 
paign, indeed, party gatherings or banquets take place, 
and speeches are made, but until recent elections, no 
common platform of principles has been issued except 
by the Socialists.^ It is after the campaign has begun, 
however, that the absence of party organization is most 
clearly seen. Then the struggle is conducted in each 

the Republicans that can be said to have anything like a positive pro-, 
gramme, and this is the source both of their strength and their weakness. 

1 Cf. Channes, Letter of Aug. 22, 1885. 

2 Cf. Lebon, France as It Is, p. 75 ; Theodore Stanton in the North 
American Rev., vol. 155, p. 471. This contrasts strangely with the United 
States, where the machinery of a party has sometimes shown more 
vitality than its principles. 

8 Daniel, UAnnee Politique, 1893, pp. 254r-80. 



84 ^FRANCE. 

electoral district with very little regard to the rest o£ 
the country, and in fact each district appears like a 
separate nation engaged in a distinct contest of its 
own.^ Political effort becomes localized, and except 
for the candidates themselves, who confine their labors 
to their constituencies, scarcely a man of prominence 
opens his mouth. 

One might suppose that, under a parliamentary 

form of sfovernment, party ore^anization would 

French hardly be required, and that, as in England, 

mechanism the uccd of poHtical cohcsiou would be to a 

in splitting tit • • 

up the great extent supphed by a strong mmistry 

that really led Parliament and the nation. 
But here we meet with some of the other causes that 
tend to produce a multiplicity of groups, — causes 
that spring from certain of the minor French institu- 
tions which were referred to in the beginning of the 
first chapter as inconsistent with the parliamentary 
system. Three of these are especially important, — the 
method of electing deputies, the system of committees 
in the Chambers, and the practice of interpellations. 
In France the scrutin de liste, or the election of all 
the deputies from a department on one ticket, 
of elating'' and the scrutin d' arrondissement, or the use 
eputies. ^^ single electoral districts, have prevailed 
alternately, the latter being in force at the present day.^ 
But under both systems an absolute majority of all the 
votes cast is required for election. If there are more 
than two candidates in the field, and no one of them 

1 Comte de Chaudordy, La France en 1889, p. 89. 

2 See, however, note on p. 17, ante. 



METHOD OF CHOOSING DEPUTIES. 85 

gets such a majority, a second vote, called the hallotage, 
is taken two weeks later, and at this a plurality is 
enough to elect.^ Now it is clear that such a procedure 
encourages each political group to nominate a separate 
candidate for the first ballot. Suppose, for example, 
that there are Reactionary and Moderate Kepubhcan 
candidates in the field, and that the Radicals prefer the 
Republican to the Reactionary, still they have nothing 
to lose by running a candidate of their own on the first 
ballot, for if the Reactionary can poll more votes than 
both his rivals combined, he will be elected in any 
event; if he cannot, he will not be elected whether the 
Radicals put up a candidate of their own or not. In 
this last case, the first ballot will have counted for 
nothing, and the Radicals will be able to vote for the 
Moderate Republican at the hallotage, and elect him 
then. They are Hkely, indeed, to gain a positive advan- 
tage by nominating a separate candidate, for if they 
succeed in polKng a large vote on the first ballot, they 
are in an excellent position to wring concessions from 
the Moderates as a price of their support. 

^ Law of June 16, 1885, Art. 5. (This article was not repealed by the 
Law of Feb. 13, 1889.) By the same article a quarter as many votes as 
there are voters registered is required for election on the first ballot. 

According to strict parliamentary usage, the term ballotage is applied 
only to cases where, at the final trial, the voting is confined by law to the 
two names highest on the poll at the preceding ballot, but the word is 
popularly used for any final ballot where a plurality is decisive. 

For the choice of a senator by the electoral college of a department, 
the votes of a quarter of the college, and a majority of all the votes 
actually cast, are required on the first two ballots, while on the third a 
plurality is enough. Law of August 2, 1875, Art. 15. The election of 
delegates . to the college by the municipal councils is conducted in the 
same manner. Law of Dec. 9, 1884, Art. 8. 



86 FRANCE. 

Cumbrous as it is, this system of voting dates back 
to the election of the States General in 1789, and, 
with a couple of short breaks, has been maintained in 
France ever since.^ The idea that a representative 
ought to be the choice of a majority of the people 
seems, indeed, to be natural in democracies, for we 
find it put in practice elsewhere. Thus, in the United 
States, a majority vote was formerly very commonly 
required for election, but it is instructive to notice that 
it was found to hinder the smooth working of two 
political parties, and has been generally though not 
quite universally abandoned.^ The fact that election by 
majority did not give rise to a multiplicity of parties in 
America shows that by itself it does not produce that 
result, where the other influences favor the development 
of two parties ; but it is nevertheless clear that where 
a number of groups exist, it tends to foster them, and 
prevent their fusing into larger bodies.^ The French 
system has been praised on the ground that it saves 
the people from the yoke of huge party machines, and 

^ Poudra et Pierre, liv. ii. ch. vii. 

^ Stimson, Am. Statute Law, § 232. In Massachusetts, election by plu- 
rality was introduced in 1855. Const, of Mass., Amendments, Art. xiv. 
For the previous law, see Const, pt. ii. ch. i. sec. n. Art. iv. ; ch. ii. sec. I. 
Art. iii. ; sec. n. Art. i. ; Rev. Stats, ch. iv. sec. xui. 

8 At the elections of 1885, which were held under the system of 
tcrutin de liste, there were two Republican lists of candidates in almost all 
the departments. G. Channes, Letter of Oct. 30, 1885. At the elections 
of 1889 and 1893, held under the scrutin d'arrondissement, there were two 
Republican candidates in a large proportion of the districts, the total 
number of candidates for a single seat running as high as ten. Duguet, 
Les Deputes et les Cahiers Electoraux en 1889 ; Id., 1893. And see Tableau 
des Elections a la Chambre des Deputes, dresse aux Archives de la Chambre. 



THE SYSTEM OF COMMITTEES. 87 

enables them to select their candidates more freely.^ 
This is true, and it is a great advantage. But the 
converse is also true ; the system tends to prevent the 
formation of great consolidated parties, and that is 
the evil from which parliamentary government suffers 
in France to-day.^ 

The system of committees in the Chambers is a still 
more important matter. Each of the French rj^^ system 
chambers is divided into sections called Bu- tferinThe 
reaux, of which there are nine in the Senate ^°^ ^^^' 
and eleven in the Chamber of Deputies.^ The Bureaux 
are of equal size, and every member of the Chamber 
belongs to one and only one of them, the division being 
made afresh every month by lot. This is a very old 
institution in France, a relic of a time before parliament- 
ary government had been thought of ; for not only do 
we find it in the Assembly of Notables and the States 
General that met on the eve of the Revolution,* but it 

1 Alfred Naquet, "The French Electoral System," in the North Am. 
Rev., vol. 155, pp. 467-68. 

2 It is not a little curious that just at this time, when the English system 
of two parties is thought by many people to be in danger of breaking up, 
a motion should be made in the House of Commons to introduce election 
by majority vote and second ballot. Such a motion was made by Mr. 
Dalziel on April 5, 1895. 

^ For the constitution of the Bureaux and the election of the commit- 
tees, see Poudra et Pierre, liv. v. chs. ii. and iii. ; Reginald Dickinson, 
Summary of the Constitution and Procedure of Foreign Parliaments, 2d 
ed. pp. 363-66. 

These Bureaux must not be confounded with the Bureau of the Cham- 
ber, which consists of the President, the Vice-Presidents, and the Sec- 
retaries. The habit in France of using the same word with different 
meanings is liable to be the source of no little confusion to the students 
of her institutions. 

4 Poudra et Pierre, § 976. 



88 FRANCE. 

existed in the ecclesiastical assemblieSj and to some 
extent in tlie States General, at a mucli earlier date.^ 
The use of the lot is, indeed, a survival from the Mid- 
dle Ages, when it was a common method of selecting 
officials.^ The Bureaux meet separately and have three 
functions. The first is that of making a preHminary 
examination of the credentials of members of the Cham- 
ber, which are divided among them for the purpose. 
The second is that of holding a preHminary discussion 
on bills brought into the Chamber, before they are 
referred to a committee ; but as a matter of fact this 
discussion is perfunctory, and is lunited to finding out 
in a general way what members of the Bureau favor 
or oppose the bill.^ The third and most important 
function of the Bureaux is the election of committees, 
for with rare exceptions all the committees of both 
Chambers are selected in the same way. Each of the 
Bureaux chooses one of its own members, and the per- 
sons so elected together constitute the committee. In 
the case of the more important committees it is some- 
times desirable to have a larger number of members, 
and if so the Bureaux choose in like manner two or 
even three members apiece, — the Chamber in each case 

^ Sciout, Histoire de la Constitution Civile du Clerge, p. 36. While 
writing, a friend has pointed out to me that the States General which met 
at Tours in 1484 was divided into six sections by provinces. See a jour- 
nal of this body by Jehan Masselin, in the Collection de Documents inedits 
sur V Histoire de France puhlies par ordre du Roi, Paris, 1835, pp. 66-73. 

^ The chief relic of the lot left in Anglo-Saxon institutions is, of course, 
its use in the selection of the jury, — a survival which is due to the fact 
already pointed out, that the English royal justice developed at an early 
period. 

® Dupriez, vol. ii. p. 404. 



THE SYSTEM OF COMMITTEES. 89 

directing, by its rules or by special vote, the number of 
members to be elected. Thus the committee on the 
budget, which is the most important one of the year, 
consists of three members chosen by each of the 
Bureaux in the Chamber of Deputies, and contains, 
therefore, thirty-three members ; while the correspond- 
ing committee in the Senate contains eighteen members, 
or two from each Bureau. 

The committee on the budget and the one appointed 
to audit the accounts of the government are permanent, 
and remain unchanged for a year. A few of the others 
(those on local affairs, on petitions, on leave of absence, 
and on granting permission to members of parliament 
to introduce bills) serve for a month and then are 
chosen afresh. With these exceptions every measure 
is in theory referred to a special committee elected by 
the Bureaux for the purpose ; but as there are certain 
to be in every session a number of bills that cover 
very much the same ground, a rigid application of this 
princij^le would result in inconsistent reports on the 
same matter by different committees, and would throw 
the work of the Chamber into utter confusion. A prac- 
tice has, therefore, grown up of treating certain com- 
mittees — such as those on the army, on labor, and on 
railroads — as virtually permanent, and referring to 
them all bills on their respective subjects.^ 

We have seen that with rare exceptions all committees, 
whether permanent, temporary, or special, are elected by 
the Bureaux, but these last, being created anew every 
month, acquire no corporate feeling, and hence have 

1 Dupriez, vol. ii. pp. 385-86. 

VOL. I. 



90 FRANCE. 

no real leaders. Owing partly to this fact they do not 
choose freely, and the chief of the parliamentary groups 
meet and barter away the places on the important com- 
mittees, which are thus cut and dried beforehand.* But 
whether the choice of committee-men is really made by 
the Bureaux or dictated by the chiefs of the groups, 
the main point to notice is that the system is entirely 
inconsistent with the parliamentary form of government. 
The cabinet cannot exert the same influence over an 
election conducted in this way that it could over one 
made by the Chamber in open session. In the latter 
case it might insist on the choice of a majority of the 
committee from among its own friends, and make of 
the matter a cabinet question; but it cannot treat the 
failure of several irresponsible sections of the Chamber 
to act in accordance with its wishes as an expression of 
want of confidence by the Chamber as a whole. The 
result is that the committees are not nominated by the 
cabinet, or necessarily in sympathy with it ; and yet all 
measures, including those proposed by the government, 
are referred to them to revise as they think best. Now 
if the ministers are to be responsible for directing the 
work of the Chamber, they ought to have a policy of 
their own and stand or fall on that. They ought to be 
at liberty to determine their own course of action, and 
to present their measures to Parliament in a form that 
they entirely approve. But if a committee has power 
to amend government bills, the ministers must either 
assume the burden of trying to persuade the Chamber 
to reverse the amendments, with all the influence of the 

^ C£. Simon, Nos Hommes d'Etat, pp. 41, 241. 



THE SYSTEM OF COMMITTEES. 91 

committee against tliem; or they must take tlie risk 
of opposing the bill as reported, although they still 
approve of many of its features ; or finally they must 
accept the bill as it stands, and become responsible for 
a measure with which they are not themselves fully 
satisfied. The committees in fact use their power with- 
out shrinking, and the annual budget, for example, has 
been compared to a tennis-ball sent backward and 
forward between the minister and the committee until 
a compromise can be reached.^ 

M. Dupriez, in his excellent work on the ministers 
in the principal countries of Europe and America, 
paints in very strong colors the evils of the French 
committee system. He points out how little influence 
the ministers have with the committees, who often 
regard them almost as the representatives of a hos- 
tile power in the state .^ He shows that while the 
ministers have no right to be present at committee 
meetings, and are invited to attend only when they 
wish to express their views, the committees claim a 
right to examine the administrative offices, insist on 
seeing books and papers, and volunteer advice.^ So 
little respect, indeed, do the committees pay to the 
opinions of the cabinet, and so freely do they amend 
its bills, that, as M. Dupriez sarcastically remarks, the 
government and the committee are never in perfect 
accord except when the former submits to the latter.* 
He says, moreover, that when a bill comes up for 

^ Simon, Souviens toi du Deux Decembre, p. 314. 

2 Vol. ii. pp. 406-7. 8 Id., pp. 395, 405, 423-24, 438-39. 

* Id., pp. 405-6, 412. 



92 FRANCE. 

debate the reporter of the committee is a rival who 
has great influence with the Chamber, while the depu- 
ties are inclined to regard the ministers with jealousy 
and defiance.^ Nor do the woes of the cabinet end 
here, for its authority is reduced to so low a point that 
its biUs are quite freely amended during the debate on 
the motion of individual deputies.^ 

Of all the committees, the most domineering and vex- 
atious is that on the budget. This committee seems to 
take pride in criticising the estimates and making them 
over, both as regards income and expenditures, while 
each member exerts himself to add appropriations for 
the benefit of his own constituents, so that when the 
report is finally made the government can hardly recog- 
nize its own work.^ In strong contrast with all this 
is Dupriez's description of the procedure on the budget 
in England.* There the authority of the ministers is 
expressly protected by a standing order of the House of 
Commons to the effect that no petition or motion for 
the expenditure of the public revenue shall be enter- 
tained except on the recommendation of the Crown ; 
and in accordance with a firmly established practice 
proposals for national taxes originate only with the 
government. In regard to amendments of the budget, 
members of the House may move to diminish, but 
not to increase an appropriation, and as a matter of 
fact the budget is rarely amended by the House at all. 
The comparison of the English and French methods of 
dealing with the budget goes far to explain the differ- 

1 Dupriez, vol. ii., p. 411. « ici., pp. 425-26. 

8 Id., p. 412. * Id., vol. i. pp. 110-12. 



INTERPELLATIONS. 93 

ence in the position of the two cabinets. Such a state 
of things as exists in France cannot fail to lessen the 
authority and dignity of the ministers, and place them 
at the mercy of the committees. It prevents them 
from framing their own programme, and insisting that 
the deputies shall accept or reject it as it stands ; 
and thus, instead of compelling the majority to act 
solidly together under the leadership of the cabinet, it 
allows any deputy to use his place on a committee as a 
means of urging his own personal views. Hence it 
tends to dislocate the majority and break it into sec- 
tions, with policies more or less out of harmony with 
each other. While, therefore, the French scheme of com- 
mittees has good points, and some features that might 
be very valuable under another form of government, it 
is clearly incompatible with the parliamentary system.^ 

The habit of addressing interpellations to the min- 
isters has a direct bearing on the stability of interpgUa,- 
the cabinet and the subdivision of parties ; *^°°^" 
for it cannot be repeated too often that these things 
are inseparable. The existence of the ministry depends 
on the support of the majority, and if that is compact 
and harmonious, the ministry will be strong and 
durable ; if not, it will be feeble and short-lived. The 
converse is also true. The cohesive force that unites 
the majority is loyalty to the cabinet and submission 
to its guidance, but if the cabinets are weak, or are 
constantly overthrown at short intervals, they cannot 

1 Lebon, U Allemagne, p. 88, remarks that the Bureaux in the French 
Chamber were intended to subdivide the factions, and accomplish this 
only too well. 



94 FRANCE. 

acquire the autliority that is necessary to lead the 
majority and weld it into a single party. This is 
especially the case when the crises occur over matters 
which are not of vital consequence to the bulk of the 
followers of the government, and yet that is precisely 
the state of things that interpellations tend to create. 

It is of the essence of parliamentary government 
that the majority should support the ministers so long, 
and only so long, as it approves of their course, and this 
means their course as a whole, in administration as well 
as in legislation ; for parHament, having the fate of the 
ministers in its hands, holds them responsible for all 
their acts, and has gradually extended its supervision 
over the whole field of government. Now a parliament 
can judge of the legislative policy of the cabinet by 
the bills it introduces, but it is not so easy to get 
the information necessary for a sound opinion on the 
efficiency of the administration. It is largely to satisfy 
this need that a practice has grown up in the House of 
Commons of asking the ministers questions, which 
may relate to any conceivable subject, and afPord a 
means of putting the cabinet through a very searching 
examination. Of course the privilege is freely used to 
harass the government, but the answer is not followed 
by a general debate, or by a vote, except in the un- 
usual case where a motion to adjourn is made for the 
purpose of bringing the matter under discussion.^ 

^ The motion to adjourn is the only one that is in order, and since 
1882 its use has been carefully limited. May, Pari. Practice, 10th ed. 
p. 240 et seq. In this form or some other a vote is occasionally taken 
on a single detail of administration. The most famous instances of late 
years have been the affair of Miss Cass in 1887, where the House of 



INTERPELLATIONS. 95 

A similar practice has been adopted in France, and 
questions are addressed to the ministers by members 
who really want information. But another kind of 
question has also developed, which is used not to get 
information, but to call the cabinet to account, and 
force the Chamber to pass judgment upon its con- 
duct. This is the interpellation.^ In form it is similar 
to the question, but the procedure in the two cases 
is quite different. A question can be addressed to a 
minister only with his consent, whereas the interpel- 
lation is a matter of right, which any deputy may 
exercise, without regard to the wishes of the cabinet. 
The time, moreover, when it shall be made is fixed by 
the Chamber itself, and except in matters relating to 
foreign affairs, the date cannot be set more than a 
month ahead. But by far the most important differ- 
ence consists in the fact that the author of the question 
can alone reply to the minister, no further . discussion 
being permitted, and no motion being in order ; while 
the interpellation is followed both by a general debate 
and by motions. These are in the form of motions to 

Commons expressed its disapproval of the government's refusal to make 
an inquiry by voting to adjourn, but where no member of the cabinet felt 
obliged to resign ; and the defeat of Lord Rosebery's ministry in 1895. 
In the last case a motion was made to reduce the salary of the Secretary 
of State for War, in order to draw attention to the lack of a sufficient 
supply of ammunition, and the motion was carried ; but there can be no 
doubt that the cabinet would not have resigned if its position had not 
already been hopeless. 

In the House of Lords questions can always be debated. May, p. 206. 

^ For the rules and practice in the case of questions, see Poudra et Pierre, 
liv. vii. ch. iii., and Supp. 1879-80, § 1539. In the case of interpellations. 
Id,, liv. viL ch. iv. 



96 FRANCE. 

pass to the order of the day, and may be orders of the 
day pure and simple, as they are called, which contain 
no expression of opinion, or they may be what are 
termed orders of the day with a motive, such as " the 
Chamber, approving the declarations of the Govern- 
ment, passes to the order of the day." Several orders 
of this kind are often moved, and they are put to the 
vote in succession. The ministers select one of them 
(usually one proposed by their friends for the purpose), 
and declare that they will accept that. If it is rejected 
by the Chamber, or if a hostile order of the day is 
adopted, and the matter is thought to be of sufficient im- 
portance, the cabinet resigns. This is a very common 
way of upsetting a ministry, but it is one which puts 
the cabinet in a position of great disadvantage, for a 
government would be superhuman that never made 
mistakes, and yet here is a method by which any of its 
acts can be brought before the Chamber, and a vote 
forced on the question whether it made a mistake or 
not. Moreover, members of the opposition are given 
a chance to employ their ingenuity in framing orders 
of the day so as to catch the votes of those deputies 
who are in sympathy with the cabinet, but cannot 
approve of the act in question.^ Now if adverse votes 

^ A very good example of the various shades of praise or blame that 
may be expressed by orders of the day can be found in the Journal 
Officiel for July 9, 1893. There had been a riot in Paris, which had 
not been suppressed without violence and even bloodshed. The police 
were accused of wanton brutality, and an interpellation on the subject 
was debated in the Chamber of Deputies on July 8. The order of the 
day quoted in the text, " The Chamber, approving the declarations of the 
government, passes to the order of the day," was adopted, but the follow- 
iag were also moved : — 



INTERPELLATIONS. 97 

in the Chamber are to be followed by the resignation of 
the cabinet and the formation of a new one, it is evi- 
dent that to secure the proper stability and permanence 
in the ministry, such votes ought to be taken only on 
measures of really great importance, or on questions 
that involve the whole poHcy and conduct of the 

" The Chamber, disapproving the acts of brutality of which the police 
have been guilty, requests the government to give to the police instruc- 
tions and orders more conformable to the laws of justice and humanity." 

" The Chamber, disapproving the proceedings of the police, passes to 
the order of the day." 

" The Chamber, approving the declarations of the government, and per- 
suaded that it will take measures to prevent the violence of the police 
officials, passes to the order of the day." 

" The Chamber, censuring the policy of provocation and reaction on the 
part of the government, passes to the order of the day." 

" The Chamber, hoping that the government will give a prompt and 
legitimate satisfaction to public opinion, passes to the order of the day." 

" Considering that the government has acknowledged from the tribune 
that its policy has caused in Paris ' sad occurrences,' ' deeds that must 
certainly be regretted,' and * some acts of brutality,' the Chamber takes 
notice of the admission of the President of the Council, demands that the 
exercise of power shall be inspired by the indefeasible sentiments of jus- 
tice, of foresight, and of humanity, and passes to the order of the day." 

" The Chamber, convinced that the government of the Republic ought 
to make the law respected and maintain order, approving the declarations 
of the government, passes to the order of the day." 

" The Chamber, regretting the acts of violence on the part of the 
police, and taking notice of the declarations of the government, passes to 
the order of the day." 

"The Chamber, approving the declaration whereby the government 
has announced its desire to put an end to the practices and habits of the 
police which have been pointed out, passes to the order of the day." 

" The Chamber, convinced of the necessity of causing the laws to be 
respected by all citizens, passes to the order of the day." 

In this case, by voting priority for the first of these motions and 
adopting it, the Chamber avoided the snares prepared for it by the in- 
genious wording of the others. 



98 FRANCE. 

administration. It is evident also that tliey ought not 
to be taken hastily^ or under excitement, but only after 
the Chamber has deliberately made up its mind that it 
disapproves of the cabinet, and that the country would 
on the whole be benefited by a change of ministers. 
The reverse of all this is true of the French system of 
interpellations, and a cabinet which in the morning 
sees no danger ahead, and enjoys the confidence of the 
Chamber and the nation, may be upset before nightfall 
by a vote provoked in a moment of excitement on a 
matter of secondary importance. 

The frequency with which interpellations are used to 
upset the cabinet may be judged by the fact that out of 
the twenty-one ministries that resigned in consequence 
of a vote of the Chamber of Deputies during the 
years 1879-1896, ten went to pieces on account of 
orders of the day moved after an interpellation, or in 
the course of debate.^ Several of these orders covered, 
indeed, the general policy of the cabinet, but others — 
like the one relating to the attendance of the employees 
of the state railroads at a congress of labor unions, 
which occasioned the resignation of Casimir-Perier's min- 
istry in May, 1894 — had no such broad significance. 
Moreover, the production of actual cabinet crises is by 

^ C£. Haucour, Gouvernements et ministeres de la IIP republique fran- 
faise {1870-1893) ; Muel, Gouvernements, ministeres et constitutions de la 
France depuis cent ans. 

Among the resignations brought about in this way, I have counted that 
of Rouvier's cabinet in 1887, although this was caused not by the vote of 
an order of the day, but by the refusal of the Chamber to postpone the 
debate on an interpellation, and although the cabinet continued to hold 
office for a few days pending the resignation of President Gr^vy. 



INTERPELLATIONS. 99 

no means the whole evil caused by interpellations. The 
enfeebling of the authority of the ministers by hostile 
votes about affairs on which they do not feel bound 
to stake their office is, perhaps, an even more serious 
matter, for no cabinet can retain the prestige that is 
necessary to lead the Chambers in a parliamentary gov- 
ernment, if it is to be constantly censured and put in a 
minority even in questions of detail. The ministers are 
not obliged, it is true, to answer interpellations,^ but 
unless some reason of state can be given for refusing, 
such as that an answer would prejudice diplomatic 
negotiations, a refusal would amount to a confession of 
error, or would indicate a desire to conceal the fact, and 
would weaken very much the position of the cabinet. 

The large part that interpellations play in French 
politics is shown by the fact that they arouse more pop- 
ular interest than the speeches on great measures ; ^ and, 
indeed, the most valuable quality for a minister to 
possess is a ready tact and quick wit in answering 
them.^ 

The first two institutions referred to as not in har- 
mony with parliamentary government — that is, the 
method of electing deputies and the system of com- 
mittees in the Chambers — have real merit. Both tend 
to check the tyranny of party, and under a form of 
government where the existence of two great parties 
was not essential, they might be very valuable. But, 
except in a despotism, the interpellation followed by a 
motion expressing the judgment of the Chamber is a 

1 Poudra et Pierre, § 1555. ^ Simon, Nos Hommes d'Etat, p. 27. 

® Simon, Dieu, Patrie, Liberie, p. 379. 



100 FRANCE. 

purely vicious institution. It furnishes the politicians 
with an admirable opportunity for a display of parlia- 
mentary fireworks ; but it is hard to see how, under any 
form of popular government, it could fail to be mis- 
chievous, or serve any useful purpose that would not 
be much better accomplished by a question followed by 
no motion and no vote. The plausible suggestion has 
been made that the administration, being free from 
supervision by the courts of law, can be brought to 
account for its acts only in this way ; ^ but surely the 
same result could be as well accomplished by the 
simpler process of the question, and it is hard to see 
any reason for imperihng the existence or the prestige 
of the cabinet to rectify some matter of trifling conse- 
^ , quence. The practice arose from the fact 

Jealousy J- ■■■ 

and distrust that, owinp^ to the immense power of the 

or the nunis- ? & x 

mrt^of the executive in France, and the frequency with 
Chamber. ^hich that powcr has been used despotically, 
the legislature has acquired the habit of looking on the 
cabinet officers as natural enemies, to be attacked and 
harassed as much as possible.^ But such a view, which 

1 See Vicomte d'Avenel, " La K^forme Administrative — La Justice," 
Revue des Deux Mondes, June 1, 1889, pp. 595-96. 

2 M. Dupriez, in the work already cited (vol. ii. p. 253 et seq.), has 
explained the strength of this feeling by a most valuable study of the 
history of the relations between the ministers and the legislature in 
France. He points out that it existed at the outbreak of the Revolution, 
for the cahiers or statements of grievances prepared by the meetings of 
electors held to choose members of the States General in 1789 express a 
widespread dislike and distrust of all ministers as such. He then shows 
how the Constituent Assembly tried to curtail the power of the ministers, 
and reduce their functions to a simple execution of its own orders. It is 
unnecessary here to follow the subject in detail. It is enough to remark 
that a large part of the political history of France since the Revolution 



INTERPELLATIONS. 101 

is defensible enough when the ministers are independ- 
ent of the Parliament, becomes irrational when they are 
responsible to it, and bound to resign on an adverse vote. 
Strange as it may seem, the development of inter- 
pellations has coincided very closely with that of parlia- 
mentary government ; ^ and, in fact, the French regard 
the privilege as one of the main bulwarks of political 
liberty. It is this same feeling of antagonism to the 
government that has given rise to the overweening 
power of the committees in the Chamber, and their 
desire to usurp the functions of the ministers. The 
extent to which this feeling is carried by the Radicals 
is shown by the proposal made some years ago to 
divide the whole Chamber into a small number of per- 
manent grand committees, such as existed in 1848, in 
order to bring the ministers even more completely 
under the control of the deputies ; the ideal of the 
Extreme Radicals being the revolutionary convention, 
which drew all the powers of the state as directly and 
absolutely as possible into its own hands.^ The less 

is filled with struggles for power between the executive and the legisla- 
ture, in which the former has twice won a complete victory, and deprived 
the representatives of the people of all influence in the state. Under 
these circumstances the suspicion and jealousy of the cabinet shown by 
Liberal statesmen is not surprising. 

^ The practice was first regularly established at the accession of Louis 
Philippe, the period when cabinets became thoroughly responsible to the 
Chamber ; and it was freely used during the Republic of 1848. After the 
Coup cfEtat it was, of course, abolished ; but toward the end of his reign 
Napoleon III., as a part of his concessions to the demand for parliamentary 
institutions, gradually restored the right of intei-pellation. Finally, under 
the present Republic the right has been used more frequently than ever 
before. See Poudra et Pierre, §§ 1544-49; Dupriez, vol. ii. pp. 305, 317-18. 

2 Cf. De la Berge, "Les Grands Comitds Parlementaires," Revue des 
Deux Monies, Dec. 1, 1889. 



102 FRANCE. 

violent Republicans are, no doubt, very far from accept- 
ing any such ideal, but still they cannot shake out of 
their minds the spirit of hostility to the administration 
which has been nurtured by long periods of absolute 
rule. They fail to realize that when the ministry 
becomes responsible to the deputies, the relations be- 
tween the executive and the legislature are radically 
changed. The parliamentary system requires an entire 
harmony, a cordial sympathy, and a close cooperation 
between the ministers and the Chamber ; and to the 
obligation on the part of the cabinet to resign when the 
majority withdraws its approval, there corresponds a 
duty on the part of the majority to support the min- 
isters heartily so long as they remain in office. Par- 
liamentary government, therefore, cannot be really 
successful in France until a spirit of mutual confidence 
between the cabinet and the Chamber replaces the 
jealousy and distrust that now prevail. 

A comparison of the political history of France and 
Ens'land durinp- corresponding" years shows to 

Companson O o i. o j 

of the^ what extent the French procedure interferes 

?893™nrtife ^^^^ discipHne and disintegrates the parties. 
nrmlut oF III England the Liberals came into power after 
^^^^' the elections of 1892 with a small majority 

in the House of Commons; and, although the sup- 
porters of the government were far from harmonious, 
were, in fact, jealous of each other and interested in 
quite different measures, the perfection of the parlia- 
mentary machinery enabled the ministers to keep their 
followers tosfether and maintain themselves in office 
for three years. In France, on the other hand, the 



EFFECTS OF THE STATE OF PARTIES. 103 

elections of 1893 produced a majority which, if not 
so large, was far more homogeneous ; and indeed, if we 
compare the position of some of the outlying groups 
with that of certain sections of the English Liberal 
party, it is fair to say that the majority in France was 
both larger and more homogeneous. Yet within two 
years this majority suffered three cabinets which rep- 
resented it to be overthrown on interpellations about 
matters of secondary importance, and finally became 
so thoroughly disorganized that it lost control of the 
situation altogether. 

We have surveyed some of the causes of the condi- 
tion of political parties in France. Let us Results of 
now trace a few of its results. In the first tion'^of"*^' 
place, the presence of the Reactionaries de- p^^^®^- 
prives cabinet crises of the significance they might 
otherwise possess. The defeat of the min- _ . 

■•■ _ Uwing to the 

isters does not ordinarily mean the advent presence of 

'' the reae- 

to power of a different party, because there ghrn'^Sf* 
is no other party capable of forming a cabi- dJ)^^^^^ 
net, — not the Reactionaries, for they are Singe of 
irreconcilable and hostile to the Republic, and ^^^^' 
of late years have been far too few in numbers; nor 
those Republicans who have helped the Right to turn 
out the ministers, because by themselves they do not 
constitute a majority of the Chamber. The new cabi- 
net must, therefore, seek its support mainly in the 
ranks of the defeated minority, and hence is usually 
formed from very much the same material as its prede- 
cessor. In fact, a number of the old ministers have 



104 FRANCE. 

generally kept their places, at most an attempt being made 
Effects of ^^ gain a little more support from the Right 
this. Qj. j^g£^ -^j giying one or two additional port- 

folios to the Moderates, Radicals, or Socialists.^ When 
a ministry falls, the parliamentary cards are shuffled, a 
few that have become too unpopular or too prominent 
are removed, and a new deal takes place. So true is this, 
that out of the twenty-four ministries that succeeded 
each other from the time President MacMahon ap- 
pointed a Republican cabinet in 1877 until 1897, only 
three contained none of the retiring ministers, the aver- 
age proportion of members retained being about two 
fifths.^ 

Now, the fact that the fall of the cabinet does not 
involve a change of party has two important effects : by 
removing the fear that a hostile opposition will come 
to power, it destroys the chief motive for discipline 
among the majority;^ and by making the Chamber feel 
that a change of ministers is not a matter of vital conse- 
quence, it encourages that body to turn them out with 
rash indifference. The result is that the cabinets are 
extremely short-lived; during the thirty-seven years be- 
tween 1875 and 1912 — there were forty-five of them, so 
that the average duration of a French cabinet has been a 

1 Lebon, France as It Is, p. 94. 

^ Cf. Haucour, Gouv. et Min.j Muel, Gouv., Min. et Const.; Duprlez, 
vol. ii. pp. 338, 343. The three exceptions were the cabinets of Brisson 
in 1885, Bourgeois in 1895, and M^line in 1896. 

^ This is very clearly pointed out by Dupriez, Les Ministres, vol. ii. 
p. 390. 



i 



CABINETS SHORT-LIVED AND WEAK. 105 

little less than ten months.' The same fact explains, 
moreover, the persistence of the system of interpella- 
tions, for if a change of ministry does not imply a differ- 
ent programme, there is no self-evident impropriety in 
overthrowing a cabinet on a question that does not in- 
volve a radical condemnation of its policy. 

The subdivision of the Republican party into sepa- 
rate groups has also an important bearing on Owinerto 
the character of the ministry. Instead of of^epXii-^ 
representing a united party, the cabinet must cabmet^ls a 
usually rely for support on a number of these andtibere- 
groups, and the portfolios must be so dis- 
tributed as to conciliate enough of them to form a 
majority of the Chamber.^ As a rule, therefore, the 
cabinet is in reality the result of a coalition, and suffers 
from the evils to vrhich bodies of that kind are always 
subject. The members tend to become rivals rather 
than comrades, and each of them is a little inclined 
to think less of the common interests of the cabinet 
than of his own future prospects when the combina- 
tion breaks up.^ Such a government, moreover, is 
essentially weak, for it cannot afford to refuse the de- 
mands of any group whose defection may be fatal to 

1 I have not counted the reappointment of the Dupuy ministry on the 
election of Casimir-Perier to the presidency as the formation of a new 
cabinet. 

^ Only on two or three occasions has the cabinet been supported by a 
group which has contained by itself anything like a majority of the 
deputies. 

8 Cf. Dupriez, vol. ii. pp. 348-49. Lebon, France as It Is, p. 85, speaks 
of the never-ending struggles for mastery within the cabinet. 



106 FRANCE. 

its existence.^ The ministers are not at the head of a 
great party that is bound to follow their lead, and yet 
they must secure the votes of the Chamber or they 
cannot remain in office. Hence they must seek support 
as best they may, and as they cannot rule the majority, 
they are constrained to follow and flatter it ; ^ or rather 
they are forced to conciliate the various groups, and, 
It must win ^^ *^^® members of the groups themselves 
^anti^ are loosely held together, they must grant 
favors. favors to the individual deputies in order to 

secure their votes. This is not a new feature in French 
politics. It is said that during the reign of Louis 
Philippe, the government kept a regular account with 
each deputy, showing his votes in the Chamber on one 
side, and the favors he had been granted on the other, 
so that he could expect no indulgence if the balance 
were against him.^ Nor has the cause of the evil 
changed. It is the same under the Third Republic that 
it was under the Monarchy of July, for in both cases 
the lack of great national parties with definite pro- 
grammes has made the satisfaction of local and personal 
interests a necessity. 

We are, unfortunately, only too familiar in this 
PoUtieai use couutry with the doctrine that to the victors 
of offices belong the spoils. In France we find the 
same thing, although it is not acknowledged so openly, 
and is disguised under the name of epuration, or the 

1 Cf. Dupriez, vol. ii. pp. 347-48, 434-35. 

2 Cf. Simon, Nos Hommes d'Etat, ch. vii. p. iii. 

^ Hello, Du Regime Constitutionnel, quoted by Minghetti, / Partiti 
Politici, p. 101 ; and see G. Lowes Dickinson, Revolution and Reaction in 
Modern France, pp. 118-20. 



PATRONAGE USED TO PLEASE DEPUTIES. 107 

pTirification of the administration from the enemies of 
the Repubhc. The practice of turning poKtical foes 
out of office and substituting one's friends seems to 
have begun during President MacMahon's contest with 
the Chamber, when the Reactionary party dismissed a 
large number of officials who had served under former 
cabinets.- After the Right had been overthrown in 
1877, there arose a cry that the Republic ought not 
to be administered by men who did not sympathize 
with it, and would naturally throw their influence 
against it ; but although the fear of danger to the form 
of government was no doubt genuine at first, the cry 
became before long a transparent excuse for a hunt 
after office.^ In speaking of this subject, however, it 
must be remembered that France is not divided into 
two great parties which succeed each other in power, 
and hence a wholesale change of public servants, such 
as has often taken place after a presidential election in 
the United States, does not occur. The process is con- 
tinuous, but slower and less thorough. On and other 
the other hand, the evil in France is by p^^^^s^s- 
no means limited to office-seeking, for owing to the 
immense power vested in the government, the favors 
which the deputies demand and exact as the price of 
their votes extend over a vast field. Nor do they show 
any false modesty about making their desires known. 

1 See Channes, pp. 18-19, 231-32. 

2 See the remarkable little book by Edmond Seherer, La Democratie et 
la France ; Cbannes, Nos Fautes (passim) ; Simon, Nos Hommes d'Efat, 
pp. 114^15, and ch. vi. ii. ; Dupriez, vol. ii. pp. 502-9 ; Lamy, La Repub- 
lique en 1883, pp. 6-8, 22 ; and see a higUy colored account by Hurlbert, 
" The Outlook in France," Fortnightly Rev., vol. 55, p. 347. 



108 FRANCE. 

They do not hesitate to invade the executive offices, 
and meddle directly in the conduct of affairs.^ Even 
the prefect, who has the principal charge of local ad- 
ministration, is not free from their interference. He 
is liable to lose his place if he offends the RepubHcan 
deputies from his department, and is therefore obliged 
to pay court to them and follow their lead. In short, the 
prefect has become, to a great extent, the tool of these 
autocrats ; and his dependence is increased by the fact 
that nowadays he does not usually remain in office long 
enough to acquire a thorough knowledge of the local 
wants, or to exercise a strong personal influence. I do 
not mean that he has become corrupt ; far from it. 
The level of integrity among French officials appears to 
be extremely high, and though wedded to routine, their 
efficiency is great ; ^ but the discretion in their hands 
is enormous, and in using it they must take care not 
to displease his Majesty the Deputy.^ 

Of course the deputies do not wield this immense in- 
Deputies fluencc to forward their own private ends alone. 
Srrf'favor They are representatives, and must use their 
Seal com- position for the benefit of the persons they 
mit ees. represent. But whom do they represent? 
The people at large? No representative ever really 
does that. So far as he is actuated by purely conscien- 
tious motives he represents his own ideas of right, and 
for the rest he represents primarily the men who have 

1 Dupriez, vol. ii. pp. 435, 607-8 ; Channes, pp. 253-56 ; Lamy, pp. 
21-26 ; Laffitte, Le Suffrage Universel, pp. 54-59. 

2 Simon, " Stability of the French Republic," The Forum, vol. 10, p. 383. 

3 Cf. Channes, Letter of Oct. 1, 1884 ; Laffitte, pp. 56-58 ; Dupriez, 
vol. ii. pp. 471-72, 506-9. 



POWER OF LOCAL COMMITTEES. 109 

elected him, and to whom he must look for help and 
votes in the next campaign. In some countries this 
means the party, and those classes that hang on the 
skirts of the party and may be prevailed upon to fall 
into line. But in France there are no great organized 
parties, and hence we must consider how candidates are 
nominated there. The government, at the present day, 
does not put forward official candidates of its own, as 
was commonly done during the Second Empire ; ^ and, 
indeed, it is not supposed to take an active part in 
elections. This last principle is not strictly observed, 
for the administrative officials at times exert no little 
influence in important campaigns, and the government 
is said to have spent a good deal of money to defeat 
Boulanger in 1889. Still there is nothing resembhng 
the control of elections under Napoleon III., and es- 
pecially there is no interference with the selection of 
candidates, this matter being left to the spontaneous 
movement of the voters themselves. The usual method 
of proceeding is as foUows : a number of men in active 
politics in a commune, or what we should call the wire- 
pullers, form themselves into a self-elected committee, 
the members usually belonging to liberal or semi-liberal 
professions, and very commonly holding advanced views, 
which are apt to go with political activity in France. 
The committees or their representatives meet together 
to form an assembly, which prepares the programme, 
nominates the candidate, and proclaims him as the can- 
didate of the party .^ These self-constituted committees, 

1 Simon, Dieu, Patrie, Liberie, p. 372. 

2 Simon, Nos Hommes d'Etat, pp. 17-25 ; Scherer, La Democratie et la 



110 FRANCE. 

therefore, have the nomniation entirely in their own 
hands ;^ and, except in the larger cities, a candidate 
owes his position largely to local influence and personal 
interests.^ Sometimes he has won prominence by a 
clever speech at a local meeting. Sometimes he has 
earned gratitude by services rendered in his profession, 
or otherwise.^ 

After the candidate is nominated, his first care is to 
issue his programme, and under the system of single 
electoral districts, each candidate, as has already been 
observed, has a separate programme, which expresses 
only his particular views. The active campaign is car- 
ried on by means of placards posted on walls and 
fences, which make a great show, but win few votes ; 
and what is far more effective, by means of newspapers 
and the stump."* The stump, curiously enough, is used 

France, pp. 22-24 ; Reinacli, La Politique Opportuniste, 186-88 ; Laffitte, 
op. cit., pp. 64r-69. 

^ Since the system of scrutin de liste has been given up and the single 
electoral districts have been reestablished, the matter is said to have 
become somewhat more simplified. It is stated that the nominating com- 
mittees are now formed, at least in many cases, without any meeting of 
delegates from the communes ; and that their function lies not in the 
selection of a candidate, but rather in helping the candidate in whose 
behalf they have been organized, and acting as his sponsors. (See Alfred 
Naquet, " The French Electoral System," North American Rev., vol. 155, 
p. 466. But see Charles Benoist, " De I'Organization du Suffrage Uni- 
versel," Revue des Deux Mondes, July 1, 1895, pp. 15-20.) However this 
may be, the close relations between the deputy and a small self-consti- 
tuted clique of local politicians, which is the essential point in the French 
electoral system, remains very much the same. 

2 Simon, Nos Hommes d'Etat, pp. 24-25. 

8 Chaudordy, La France en 1889, p. 96. 

4 Alfred Naquet, "The French Electoral System," North American 
Rev., vol. 155, pp. 468-70. 



POWER OF LOCAL COMMITTEES. Ill 

very little except by the candidates themselves/ who 
constantly speak at political rallies, of late years fre- 
quently holding joint debates.^ Far too often, unfor- 
tunately, they also truckle to the personal ambition of 
individual voters by flattery and the promise of favors, 
a course that deters some of the best men from political 
lif e.^ The wire-pullers, indeed, are not over-anxious for 
really strong characters, because they prefer men whom 
they can control, and use for their own purposes.* If 
they want anything they exert a pressure on the deputy, 
who in his turn brings a pressure to bear on the min- 
isters ; and hence it has been a common saying that 
the electoral committees rule the deputies, and the 
deputies rule the government.^ 

It is asserted that, since the re-introduction of single 
electoral districts, the power of the committees has sen- 
sibly diminished,'^ and, whether this be true or not, it is 

^ Theodore Stanton, supplement to the article of Alfred Naquet, 
p. 473. 

2 Alfred Naquet, lb. The newspapers at election time are full of 
accounts of these meetings for joint debate, called Reunions publiques 
contradictoires. 

^ Cf . Scherer, La Democratie et la France, pp. 24-25, 39. Direct bribery 
of voters, though not unknown, seems to be rare, but the complaint that 
elections have been getting a good deal more expensive of late years is 
general. Naquet, lb. ; Reinach, pp. 189-90 ; Simon, Dieu, Patrie, Liberie, 
p. 373 ; Souviens toi du Deux Decembre, p. 91. 

4 Channes, Nos Fautes, pp. 379-81 ; Laffitte, p. 69 et seq. 

^ Channes, pp. 238-39 ; and see Scherer, La Democratie et la France, 
p. 27; Simon, Dieu, Patrie, Liberie, p. 378. 

For this reason one frequently hears it said that the deputies do not 
see the real people, but only their own political dependents. Channes, 
p. 38 ; Simon, Souviens toi du Deux Decembre, pp. 165-66. 

^ Naquet, " The French Electoral System," NoriTi American Rev., vol. 
155, p. 466. But see on the other side the article of Benoist in the 
Revue des Deux Mond.es, July 1, 1895, pp. 17-19. 



112 FRANCE. 

certainly easy to exaggerate their influence, for the dep- 
The depu- ^^J must always consider other people beside 
theb con- ^he wirc-pullers. He must try to strengthen 
stituents. j^'g general popularity throughout his district. 
He is, indeed, expected to look after the political business 
of his constituents, and is a regular channel for the pre- 
sentation of grievances and the distribution of favors ; 
one of the complaints most commonly heard in France 
being that the deputies represent local and personal in- 
terests rather than national ones. But even this does not 
end his responsibilities. The traditions of centralization 
which make all France look to Paris for guidance, and 
the habit of paternal government that makes men turn 
to the state for aid, have caused many people to regard 
the deputy as a kind of universal business agent for 
his district at the capital, and burden him with all sorts 
of private matters in addition to his heavy public duties. 
Sometimes this is carried to an extent that is positively 
ludicrous. Some years ago a couple of deputies gave 
an account at a pubhc dinner of the letters they had 
received from their districts. Some constituents wanted 
their representative to go shopping for them ; others 
asked him to consult a physician in their behalf ; and 
more than one begged him to procure a wet nurse, 
hearing that this could be done better in Paris than in 
the provinces.^ Is it to be wondered that the French 
deputy should bend under the weight of his responsi- 
bilities ? 

If I seem to have drawn a somewhat dark picture of 
the position of the deputy, I do not want to be under- 

1 This is quoted by Scherer in La Democratie et la France, pp. 34r-35. 



THE DEPUTY A CHANNEL FOK PRIVATE FAVORS. 113 

stood as implying that all deputies are alike ; that many 
of them are not men of high character, who will not 
yield to the temptation and pressure with which they 
are surrounded. My object is simply to describe a 
tendency ; to point out a defect in the French poHtical 
system, and to show clearly the characteristic evils 
which that defect cannot fail to develop. The famous 
scandals about the bribery of deputies in connection 
with the Panama Canal, with which the newspapers 
were filled for three months, have thrown a dismal 
light over pubHc life in France, and, although at first 
the credulous Parisians no doubt exaggerated the ex- 
tent of the corruption, still there was fire enough under 
the smoke to show what balefid influences haunt the 
corridors of the Palais Bourbon. 

Before closing, let us consider for a moment the 
political prospects of the country. The gen- 

ProsT)Gcts or 

erous enthusiasm that greeted the Republic at the Repub- 
the outset has faded away, and even its most 
ardent advocates have found to their sorrow that it has 
not brought the promised millennium. Such a feeling of 
disappointment is not surprising. On the contrary, it 
might have been surely predicted, for in every form of 
government that has existed in France since the Revo- 
lution the period of enthusiasm has been followed by 
one of disenchantment, and to this latter stage the Re- 
public has come in the natural course of events. Now 
this period may weU be looked upon as crucial, because 
as yet no form of government in France has been able 
to live through it. After a political system has lasted 
about half a generation, the country has always become 



114 FRANCE. 

disgusted with it, torn it down, and set up another, — a 
course that has made any steady progress in pubHc life 
impossible. The effect has, in fact, been very much 
like that which would be produced by a man who 
should constantly root out his crops before they came 
to maturity, and sow his field with new and different 
seed. 

The reason for such a state of things' is not hard to 
Hitherto no ^^^- Siuce the Rcvolution every form of 
^arr^has govcmment in France has been the expres- 
Sout\ sion or outward sign of a definite set of 
revolution, political opiuious. So close, indeed, has the 
connection been between the two, that it has been 
impossible for men to conceive of one without the 
other, and therefore a fundamental change of opinion 
has always involved a change in the form of govern- 
ment. Any one who studies the history of the nation 
will see that there has never been a change of party 
without a revolution. There has often been a shifting 
of control from one group to another of a slightly dif- 
ferent coloring, but the real party in opposition has 
never come to power without an overturn of the whole 
political system. Under the Restoration, for example, 
the ministers were sometimes Moderate and sometimes 
extremely Reactionary, but were never taken from 
the ranks of the liberal opposition. Again, during the 
Monarchy of July the different groups of Liberals dis- 
puted fiercely for the mastery, but neither the Radicals 
nor the Reactionaries had the slightest chance of com- 
ing to power. If space permitted, this truth might be 
illustrated by taking up in succession each of the gov* 



PROSPECTS OF THE REPUBLIC. 115 

ernments that have flourished since the Revolution, but 
perhaps it is enough to refer to the only apparent 
exception that has occurred. While General MacMahon 
was President of the Third Republic, power was cer- 
tainly transferred from the Reactionaries to the Repub- 
licans, but the circumstances of this case were very 
peculiar. The Republic had hardly got into working 
order, and the struggle of the Reactionaries may be 
looked upon as a final effort to prevent it from becom- 
ing firmly established. The French themselves have 
always considered the occurrence, not as a normal 
change of party, but as the frustration of an attempt at 
a C0U2J dJetat or counter-revolution. This case, there- 
fore, from the fact that it has been generally regarded 
as exceptional, may fairly be treated as the kind of 
exception that tends to prove the rule. A revolution 
in France corresponds in many ways to a change of 
party in other countries, but with this grave disadvan- 
tage, that the new administration, instead of reforming 
the pohtical institutions, destroys them altogether. Of 
course such a method puts gradual improvement out 
of the question, and before the nation can perfect her 
government she must learn that the remedy for defects 
is to be sought through the reform, not the overthrow, 
of the existing system. 

One would suppose that under the Republic no such 
difficulty could arise, because a republic means the rule 
of the majority, and the majority is sure to be some- 
times on one side and sometimes on the other. But 
this is not the view of most French Republicans, and 
especially of the Radicals. These men, recognizing 



116 FRANCE. 

that, on account of a want of training in self-govern- 
ment, the people can be cajoled, or frightened, or 
charmed, or tricked into the expression of the most con- 
tradictory opinions, refuse to admit that any vote not in 
harmony with their own ideas can be a fair test of the 
popular will, and assume for themselves the exclusive 
privilege of declaring what the people really want. As 
M. Edmond Scherer has cleverly said : " Let us add 
that the God (universal suffrage) has his priests, whose 
authority has never been quite clear, but who know 
his wishes, speak in his name, and, if resistance occurs, 
confound it by an appeal to the oracle whose secrets 
are confided to them alone." ^ The Radicals, therefore, 
cannot admit a possibility that the true majority can be 
against them, and nothing irritates them so much as to 
hear the other parties claim that the people are on 
their own side. It has been said that the Republic will 
not be safe until it has been governed by the Conserva- 
tives,^ and the remark has a special significance in this 
connection : first, because, until the Conservatives come 
to power, it will not be clear whether the Republic has 
enough strength and elasticity to stand a change of 
party without breaking down ; and second, because the 
right of the majority to rule, which is the ultimate 
basis of the consensus on which the Republic must 
rest, will not be surely established until each party has 
submitted peaceably to a popular verdict in favor of the 
other. 

1 La Democratie et la France, p. 18. 

2 " La E^publique et les Conservateurs," Revue des Deux Mondes, March 
1, 1890, pp. 120-21. This means, of course, the conservative elements 
among the people, and not merely the conservative Republicans. 



PROSPECTS OF THE REPUBLIC. 117 

If the Republic proves lasting, the form of its institu- 
tions will no doubt be gradually modified, but, ppoi^abie 
whatever changes take place, one thing is prencK 
clear: the responsibility of the ministers to «*^*'^t^°^^- 
parliament must be retained. In a country like the 
United States, where power is split up by the federal 
system, where the authority in the hands of the 
executive is comparatively small, and, above all, where 
the belief in popular government and the attachment 
to individual liberty and the principles of the common 
law are ingrained in the race, there is no danger in 
intrusting the administration to a President who is 
independent of the legislature. But this would not be 
safe in France, because, owing to the centralization of 
the government and the immense power vested in the 
executive, such a President would be almost a dictator 
during his term of office ; and the temptation to pro- 
long his authority, from public no less than from selfish 
motives, would be tremendous. Nor, in view of the 
tendency of the mercantile classes, and even of the 
peasants, to crave a strong ruler, would it be difficult 
for him to do so, as Louis Napoleon proved long ago. 
A President is able to overthrow a popular assembly 
because the French have long been accustomed to 
personal government, and because an assembly is in- 
capable of maintaining a stable majority ; because, in 
short, the French know how to work personal but not 
representative government : and the danger will con- 
tinue until parliamentary institutions are perfected, and 
their traditions by long habit have become firmly 
rooted. The French President cannot, therefore, be 



118 FRANCE. 

independent, and the only feasible alternative is to 
surround him with ministers who are responsible to the 
Chamber of Deputies. But if the parliamentary system 
must be retained, it is important to remove the defects 
that it shows to-day, and especially is it necessary, on 
the one hand, to diminish the autocratic power of the 
administration, which offers a well-nigh irresistible 
temptation to both minister and deputy ; and, on the 
other hand, to give the cabinet more stability, more 
dignity, and more authority ; to free it from the yoke 
of the groups in the Chamber, and from dependence on 
local interest and personal appetite ; to relieve it from 
the domination of irresponsible committees, and from 
the danger of defeat by haphazard majorities ; to enable 
it to exert over its followers the discipline that is required 
for the formation of great, compact parties ; to make it, 
in short, the real head of a majority in parliament and 
in the nation. 

VOL. I. 



ITALY 



CHAPTER m. 

ITALY: INSTITUTIONS. 

The perfection of its organization and the excel- 
Causesthat ^^^(^^ of its laws preserved the Hfe of Rome 
Srof*^^ long after its vital force had become ex- 
^^^^' hausted ; and when the Teutonic tribes had 

once broken through the shell of the western empire, 
they overran it almost without resistance. Europe 
sank into a state of barbarism, from which she re- 
covered to find her poHtical condition completely 
changed. Slowly, during the Middle Ages, the nations 
were forming, until at last Europe became divided 
into separate and permanent states, each with an inde- 
pendent government of its own. In two countries, 
however, — Italy and Germany, — this process of de- 
velopment was delayed by the existence of the Holy 
Roman Empire, which claimed an authority far greater 
than it was able to wield, and, while too weak to consoli- 
date its vast dominions into a single state, was strong 
enough to hinder them from acquiring distinct and 
national governments. The condition of Italy was 
further complicated by the presence of the Pope ; for 
although the Papacy was an immense civilizing force in 
mediaeval Europe, yet the constant quarrels of the Pope 
and the Emperor, and the existence of the States of 
the Church, tended greatly to prevent the development 



FORMATION OF THE KINGDOM. 121 

of Italy as a nation. The country was broken into 
a multitude of jarring elements, and even Dante saw 
no hope of union and order save under the sway of 
a German emperor. The north of Italy was full of 
flourishing cities enriched by commerce and manufac- 
tures and resplendent with art, but constantly fighting 
with each other, and, except in the case of Venice, 
a prey to internal feuds that brought them at last 
under the control of autocratic rulers.^ The south, on 
the other hand, fell under the dominion of a series 
of foreign monarchs, who were often despotic, and, by 
making the government seem an enemy of the gov- 
erned, destroyed in great measure the legal and social 
organization of the people. For thirteen centuries — 
from the reign of Theodoric the Ostrogoth to the 
time of Napoleon — the greater part of Italy was never 
united under a single head, and in both of these 
cases the country was ruled by foreigners. Yet short- 
lived and unnatural as the Napoleonic Kingdom of Italy 
was, it had no small effect in kindling that longing for 
freedom and union which was destined to be fulfilled 
after many disappointments. 

By the treaty of Vienna, in 1815, Italy was again 
carved into a number of principalities, most 
of them under the direct influence of Austria, takes the 

_ _ pi 1 n (1 • 1 1 ^^^"^ '^^ Italy 

Most 01 them, but not all, lor in the north- in the 

, strug-gle for 

western corner of the peninsula, between the Italian inde- 

^ ^ pendence. 

mountains and the sea, lay Piedmont, ruled by 

a prince of the house of Savoy, with the title of King 

^ Genoa was torn with factions, and was at times, though not perma* 
nently, subject to Milan or to France. 



122 ITALY. 

of Sardinia. During the great popular upheaval of 

1848, Charles Albert, a king of this line, granted to 

his people a charter called the Statuto, and 

in that year and the following he waged war 

with Austria for the Hberation of Italy. He was badly 

beaten, but succeeded in attracting the attention of all 

Italians, who now began to look on the King of 

Sardinia as the possible saviour of the country. After 

his second defeat, at Novara, on March 23, 1849, 

Charles Albert abdicated in favor of his son, 

Victor Victor Emmanuel, who refused to repeal the 

Emmanuel. • • o j re i i i 

btatuto m spite oi the oners and the threats 
of Austria, — an act that won for him the confi- 
dence of Italy and the title " II Re Galantuomo," the 
King Honest Man. The rehance, indeed, which Victor 
Emmanuel inspired was a great factor in the making of 
Italy; and to this is due in large part the readiness 
with which the ItaHan revolutionists accepted the mon- 
archy, although contrary to their repubhcan sentiments. 

In fact, the chivalrous nature of the principal 
character of actors makes the struggle for Itahan unity 

more dramatic than any other event in modern 
times.^ The chief characters are heroic, and stand out 
with a vividness that impresses the imagination, and 
gives to the whole history the charm of a romance. 
Victor Emmanuel is the model constitutional king; 
Cavour, the ideal of a cool, far-sighted statesman ; 
Garibaldi, the perfect chieftain in irregular war, dash- 
ing, but rash and hot-headed ; Mazzini, the typical 

^ Professor Dicey speaks of this, and draws a comparison between 
Italian ajid Swiss politics, in a letter to The Nation of Nov. 18, 1886. 



FORMATION OF THE KINGDOM. 123 

conspirator, ardent and fanatical ; — all of tliem full of 
generosity and devotion. The enthusiasm which their 
characters inspired went far to soften the difficulties in 
their path, and to help the people to bear the sacrifices 
entailed by the national regeneration. Over against 
these men stands Pius IX., who began his career as a 
reformer, but, terrified by the march of the revolution, 
became at last the bigoted champion of reaction. The 
purity of his character and the subtle charm of his 
manner fitted him to play the part of the innocent 
victim in the great drama. 

When Cavour first became prime minister of Victor 
Emmanuel in 1852, his plan was a confeder- cavour's 
ation of the Italian States under the Pope ftaUancon- 

Till. !_• n 1 l.^ federation. 

as nominal head, but practically under the 
lead of the King of Sardinia. Now, in order to make 
this plan a success, it was necessary to exclude the 
powerful and reactionary House of Habsburg from all 
influence in the peninsula, and with this object he 
induced Napoleon III. to declare war against Austria 
in 1859 ; but when the Emperor brought the war to a 
sudden end by a peace that required the cession of 
Lombardy alone, and left Venice still in the hands of 
the enemy, Cavour saw that so long as Austria retained 
a foothold in Italy, many of the principalities would 
remain subject to her control. He therefore changed 
his scheme, and aimed at a complete union changed to 
of Italy under the House of Savoy .^ The ^fi**''^ 
whole country was ready to follow the lead ^ °™* 

1 Jaeini, / Conservatori e I' Evoluzione dei Partiti Politici in Italia, p. 
55 et seq. 



124 ITALY. 

of Victor Emmanuel, and, except for Venice and Rome, 
which were guarded by foreign troops, the march of 
events was rapid. The people of the northern States 
had already risen and expelled their rulers, and early 
in 1860 they declared for a union with Sardinia. 
Later in the same year Garibaldi landed at Marsala 
with a thousand men, roused the country, and quickly 
overran Sicily and Naples, which decided by popular 
vote to join the new kingdom, — a step that was soon 
followed by Umbria and the Marches. The rest of 
Italy was won more slowly. Venice was annexed in 
1866, as a result of the war fought against Austria 
by Prussia and Italy ; and Rome was not added until 
1870, after the withdrawal of the French garrison and 
the faU of Napoleon III., who had sent it there to 
protect the Pope. 

It is curious that Sardinia expanded into the King- 
Govemment dom of Italy witliout any alteration of its 
domofit^y. fundamental laws, for the Statuto, originally 
The Statuto. granted by Charles Albert in 1848, remains 
the constitution of the nation to-day. It has never 
been formally amended, and contains, indeed, no pro- 
vision for amendment. At first it was thought that 
any changes ought to be made by a constituent 
assembly, and in 1848 a law was passed to call one, 
although, on account of the disastrous results of the 
war, it never met. By degrees, however, an opinion 
gained ground that the political institutions of Italy, 
like those of England, could be modified by the ordi- 
nary process of legislation. This has actually been 
done, to a greater or less extent, on several occasions ; 



THE STATUTO. 125 

and now both jurists and statesmen are agreed that 
unlimited sovereign power resides in the King and 
Parliament.^ The Statuto contains a bill of rights ; 
but, except for the provision forbidding censorship of 
the press, and perhaps that protecting the right of 
holding meetings,^ it was not designed to guard against 
oppression by the legislature, but only by the executive. 
The Statuto is, in fact, mainly occupied with the 
organization of the powers of state, and has gradually 
become overlaid with customs, which are now so strong 
that many Italian jurists consider custom itself a source 
of public law. They claim, for example, that the habit 
of selecting ministers who can command a majority in 
Parliament has become binding as part of the law of 
the land.^ 

Let us consider the powers of state in turn, begin- 
ning with the King and his ministers, then passing 
to the Parliament, then to the local government and 
the judicial system, and finally to the position of the 
CathoHc church. 

^ Brusa, Italien, in Marquardsen's Handhuch, pp. 12-16, 181-82; Ruiz, 
"The Amendments to the Italian Constitution," 4nn. Amer. Acad, of Pol. 
Sci., Sept., 1895. It may be noted that the various contributions to Mar- 
quardsen's work are of very different value, and that Brusa's is one of 
the best. He remarks (p. 15) that, before changing any constitutional 
provision, it has been customary to consult the people by means of a gen- 
eral election, and that it is the universal opinion that Parliament has not 
power to undo the work of the popular votes by which the various prov- 
inces were annexed ; in other words, that Parliament cannot break up 
the kingdom. It has been suggested that the courts can consider the 
constitutionality of a law which involves a forced construction of the 
Statuto, but this view has not prevailed. (Brusa, pp. 182, note 3, 229-30.) 

2 Arts. 28, 32. 

* See Brusa, p. 19. 



126 ITALY. 

At the head of the nation is the King, whose crown 
is declared hereditary, according to the prin- 
ciples of the Salic law; that is, it can be 
inherited only by and through males.^ It sounds like 
Power ^ paradox to say that the King is a constitu- 

exerSed tional sovcrcign, but that the constitution 
^ ■ does not give a correct idea of his real func- 
tions, and yet this is true. By the Statuto, for example, 
his sanction is necessary to the vaHdity of laws passed 
by the Parliament,^ but in point of fact he never 
refuses it.^ Again, the constitution provides that 
treaties which impose a burden on the finances or 
change the territory shall require the assent of the 
Chambers,* leaving the Crown free to conclude others 
as it thinks best ; but in practice all treaties, except 
military conventions and alHances, are submitted to 
Parliament for approval.^ The King is further given 
power to declare war, to appoint all of&cers, to make 
decrees and ordinances, to create Senators, to dissolve 
the Chamber of Deputies, and so forth ; ^ but the 
Statuto also provides that no act of the government 
shall be valid unless countersigned by a minister ; and 
in fact all the powers of the King are exercised in his 
name by the ministers, who are responsible to the 
popular Housed He is, indeed, seldom present at 

1 Statute, Art. 2. 

2 Statuto, Art. 7. 

3 Brusa, pp. 105, 153 ; cf. Dupriez, vol. i. pp. 281, 292-97. 
* Statuto, Art. 5. 

« Brusa, p. 106. 

6 Statuto, Arts. 5-9. 

' Statuto, Art. 67 ; and see Brusa, p. 105. 



THE KING AND HIS MINISTERS. 127 

cabinet meetings, and has little or no direct influence 
over current domestic politics/ although it is said that 
his personal opinion has a good deal of weight on 
the relations with foreign states.^ When, however, a 
cabinet crisis occurs and the ministry resigns, the King 
has a great deal of latitude in the appointment of its 
successor; for the Chamber is not divided into two 
parties, one of which naturally comes into power when 
the other goes out, but, as in France, it is split up into 
a number of small groups, so that every ministry is 
based upon a coalition. The King can, therefore, send 
for almost any one he pleases and allow him to attempt 
to form a cabinet. It often happens, moreover, that 
the man selected feels that he cannot get the support 
of a majority in the existing Chamber, but, hoping for 
a favorable result from a new election, is wilHng to 
undertake to form a cabinet if allowed to dissolve 
ParHament. In such cases the King exercises his own 
discretion, and grants permission or not as he thinks 
best ; for, contrary to the habit in France, dissolutions 
in Italy are by no means rare. Thus the Itahan King, 
although strictly a constitutional monarch tied up in a 
parHamentary system, is not quite so powerless as the 
French President or the English King. *^ /^' 

In the selection of his ministers the King is not 
limited by law to members of ParHament, but, r^-^^ -anma.. 
if a man is appointed who is not a member of *®^^' 
either House, he is obliged by custom to become a can- 

1 Brusa, p. 108. Dupriez, vol. i. p. 289, says that he presides only when 
peculiarly important matters are under discussion. 

2 Dupriez, vol. i. p. 296. This is a common opinion. 



128 ITALY. 

didate for the next vacant seat in the Chamber of 
Deputies, unless he is created a Senator.^ As in other 
parHamentary governments on the Continent, however, 
the ministers and their under-secretaries have a right to 
be present and speak in either Chamber, although they 
can vote only in the one of which they happen to be 
members.^ The work of the Parliament is, indeed, 
chiefly directed by them ; for, while individual members 
have a right to introduce bills, the power is used only 
for matters of small importance.^ As a rule, each 
minister has charge of a department of the administra- 
tion; but it is allowable, and was at one time not 
uncommon, to appoint additional ministers without port- 
folios, whose duties consisted solely in helping to shape 
the policy of the government, and defending it in the 
Chambers.* 

The Italian Parliament has two branches, — ^the Senate 
and the Chamber of Deputies. The Senate is 
composed of the princes of the royal family,^ 

^ Brusa, p. 108; and the same thing is true of the parliamentary 
under-secretaries. Id., p. 196. 

2 Statute, Art. 66 ; Law of Feb, 12, 1888, Art. 2. 

8 Brusa, p. 172. Dupriez (vol. i. p. 308) says that the ministers in 
Italy have not so complete a monopoly of initiative as in other countries, 
and that private members often propose measures with success. But in 
saying this he must not be understood to deny that the laws enacted as 
a result of private initiative are unimportant compared with the govern- 
ment measures, both as regards number and character. 

* Brusa, p. 197. See, also, the lists of the different ministries published 
in the Manual of the Deputies. This manual, by the way, is a most valua- 
ble production, for it contains the text of many important laws and a large 
amount of interesting information. For the organization and functions of 
the various departments, see Brusa, p. 200 et seq. 

^ Statuto, Art. 34. 



THE SENATE. 129 

and of members appointed by the King for life from 
certain categories of persons defined by the j^^ ^^ 
Statuto.^ These are : bishops ; ^ sundry high ^^^^^^ 
of&cials, civil, mihtary, and judicial;^ deputies who 
have served three terms, or six years ; * men vv^ho have 
been for seven years members of the Royal Academy of 
Science ; men who pay over three thousand lire (about 
six hundred dollars) in taxes ;^ and men deserving ex- 
ceptional honor for service to the state. Owing to 
the extreme severity of the Senate in recognizing such 
desert, there are at present only two members from 
this last class ; for the Senate itself has the strange 
privilege of deciding whether a person selected by the 
King belongs properly to one of these classes, and is 
qualified to be a Senator.^ Except for money 
bills, which must be presented first to the p^^®^^- 
Chamber of Deputies, the legislative powers of the two 
Houses are the same, but the Senate has also judicial 
functions. It can sit as a court to try ministers im- 
peached by the Chamber of Deputies ; to try cases of 
high treason and attempts on the safety of the state ; ^ 

1 Statute, Art. 33. All the appointed members must be forty years 
old. 

2 Since the quarrel with the Pope in 1870 this class has not been avail- 
able. Brusa, p. 119. 

2 Except in the case of the highest officials, persons of this class can be 
appointed only after a period of service which varies from three to seven 
years, according to the office they hold. In 1910 there were ninety-nine 
Senators from this class. 

^ Out of a total of about three hundred and eighty-three, there were in 
1910 about one hundred and forty-seven Senators from this class. 

^ There were seventy-one Senators from this class also. 

« Brusa, p. 119 ; and see the Statute, Art. 60. 

7 Statute, Art. 36. 



130 ITALY, 

and to try its own members, — the Italians, curiously 
enough, having copied in their Senate the antiquated 
privilege which entitles the English Peers to be tried 
for crime only by members of their own body.^ As a 
matter of fact, the Senate has very little real power, and 
is obliged to yield to the will of the Lower House.^ In 
1878-80 it did, indeed, refuse to abolish the unpopular 
grist-tax for more than a year, but gave way before a 
newly elected Chamber of Deputies.^ It would proba- 
bly not venture even so far to-day, for the number of 
Senators is unlimited, and on several occasions a large 
batch of members has been created in order to change 
the party coloring of the body, — in 1890 as many as 
seventy-five having been appointed for this purpose at 
one time.* As in other countries where the parha- 
mentary system exists, the cabinet is not responsible to 
the Upper House ; and it is only occasionally, and as 
it were by accident, that a minister has resigned on 
account of an adverse vote in the Senate.^ 

The Chamber of Deputies consists of five hundred 

and eight members, elected on a limited fran- 
berof Depu- chisc. By the earher law, the suffrage was so 

restricted that less than two and a half per 
cent of the population were entitled to vote ; but this 

1 Statute, Art. 37. 

2 The changes made by the Senate in bills have usually a legal rather 
than a political importance. Dupriez, p. 313. 

8 Brusa, pp. 155-56. See Petruccelli della Gattina, Storia d' Italia, 
1860-1880, pp. 420-21, 558-59. 

•* In 1886 forty-one were appointed together, and in 1892 forty-two. 
See the list of Senators with their dates, in the Manual of the Deputies 
for 1892, p. 806 et seq., and p. 876. 

* Brusa, p. 158, note 3. 



THE CHAMBER OF DEPUTIES. 131 

was felt to be too small a proportion, and in 1882 it was 
increased by an act whose provisions are still rpj^g ^^.^^^ 
in force. ^ By this statute a voter must be able ^^^^' 
to read and write, and must have passed an examination 
on the subjects comprised in the course of compulsory 
education,^ except that the examination is not required 
in the case of of&cials, professional men, graduates of 
' colleges, and others who could, of course, pass it ; nor in 
the case of men who have received a medal for military 
or civil service, or who pay a direct tax of nineteen lire 
and four fifths (about four dollars), or who pay rents of 
certain amounts. The change more than tripled the 
quantity of voters at once;^ and, although these still 
include only a small part of the citizens, it is to be 
observed that with the spread of elementary education 
their number will gradually increase until the suffrage 
becomes substantially universal.* 

At first the members were chosen each in a separate 
district, but after the times of enthusiasm for Italian 
unity were over, and the generous impulse that had 

^ Brusa, pp. 122-27. This law, with its amendments, recodified in 
1895, may be found in full in the Manual of the Deputies for that year. 

2 Education is compulsory in Italy only between the ages of six and 
nine. Act of July 15, 1877, Art. 2. 

3 It raised the number from 627,838 to 2,049,461. Brusa, p. 127. When 
the law went into effect, the voters were not very unequally divided into 
those who passed the examination, those who paid the taxes, and the other 
excepted classes. Id., p. 126, notes 1-2, 

^ In order to restrict the arbitrary influence of the government over 
elections, and to prevent the abuses which had been common before, a 
procedure for preparing the lists of voters and insuring the secrecy of the 
ballot was established by the same law (see Brusa, pp. 127-28, 130-32) ; 
and in this connection it is to be noticed that soldiers and sailors in active 
service (including subalterns and police officials) are not allowed to vote. 
Law of March 28, 1895, Art. 14. 



132 ITALY. 

stirred the country began to give way before the selfish 
motives of e very-day life, it was found that the deputies 
failed to take broad views of national questions, and 
were largely absorbed by personal and local interests. 
It was found, in short, that they represented the nation 
too little and their particular districts too much ; ^ and it 
was hoped that by increasing the size of the districts 
they would be freed from the tyranny of local influence, 
and enabled to form compact parties on national issues.^ 
With this object the Act of 1882 distributed the five 
hundred and eight seats among one hundred and thirty- 
five districts, which elected from two to five deputies 
apiece;^ and, in order to give some representation to 
minorities, it was provided that in those districts which 
elected five deputies no one should vote for more than 
four candidates.* The new system, called the scriitinio 
di lista, did not produce the results that were expected 
from it. On the contrary, in Italy as in France, where 
the same remedy was applied to the same evil, the 
organization and power of the local wire-pullers grew 
with the increase in the number of deputies elected in 
a district, while the influence of the latter over the 
ministers and the provincial officers was greater than 
ever before.^ An Act of May 5, 1891, has therefore 

1 Brusa, p. 16. 

2 Minghetti, / Partiti Polidci, p. 18 ; Petruccelli della Gattina, p. 504. 

8 Three districts elected two deputies, sixty-one elected three, thirty- 
six elected four, and thirty-five elected five. Brusa, p. 129. See Arts. 
44 and 45 of the Act of 1882, and the table of districts annexed thereto. 

4 Act of 1882, Art. 65. 

^ Brusa, lb. ; and see Turiello, Governo e Governati in Italia, 2d ed. j 
Fatti, p. 326 ; Proposte, p. 171. 



THE CHAMBER OF DEPUTIES. 133 

abolished tlie serutinio di lista and reestablislied single 
electoral districts.^ 

In accordance with the general practice in Europe, 
the deputies are not required to be residents 

„,.,.. ■, -, • T- Qualifica- 

01 their districts, the only important limita- tionofthe 

1 • f> T 1 1 • 1 deputies. 

tions on the choice oi candidates being the 
requirement of the age of thirty years, and the pro- 
vision excluding priests who have active duties, mayors 
and provincial counselors in their own districts, and all 
officials paid from the treasury of the state with the ex- 
ception of ministers, under-secretaries, and a few others.^ 
The deputies receive no pay for attendance, but are 
given free passes over the railroads,^ and it is no doubt 
partly for this reason that the small attendance in the 
Chamber has long been a crying evil. 

The Chamber is elected for five years, but so far 
its life has always been cut short by a dis- 

t ' -I ' p ^ IIP '^^^ term 

solution, and in lact the average length ot of the 

11111 4. FTM Chamber. 

term has been less than three years. ihe 

budget and the contingent of recruits are adjusted by 

1 This law is printed in the Manual of the Deputies for 1892, in place 
of Arts. 44, 45, of the Act of 1882. 

2 Brusa, pp. 132-34 ; and see Acts of Dec, 1860 (Arts. 97, 98), July 3, 
1875, May 13, 1877, July 5, 1882, March 28, 1895 (Arts. 81-89). There 
is a curious provision that only forty officials of all kinds (except minis- 
ters and under-secretaries), and among them not more than ten judges 
and ten professors, can be deputies at the same time, and if more are 
elected they are reduced to that number by lot. Law of March 28, 1895, 
Art. 88. On account of some scandals that occurred at one time it is 
further provided that no officers of companies subventioned by the state, 
and no government contractors, can sit in the Chamber. Brusa, p. 134 ; 
law of March 28, 1895, Arts. 84-85. 

^ Brusa, pp. 159-60. 
4 Id., p. 139. 



134 ITALY. 

annual laws, and there would naturally be a new session 
every year; but in order not to interrupt the work of 
Parliament, and especially the consideration of the 
budget, which is apt to be behindhand, a curious habit 
has grown up of prolonging the sessions, so that three 
recent Parliaments have had only a single session apiece, 
one lasting two and a half and another three and a half 
years, all of them unbroken save by occasional recesses.^ 
The Chamber of Deputies elects its own President 
The Presi- ^^^ othcr officers, and the vote for President 
^^^^- used to he an occasion for a trial of party 

strength, as in most other legislative bodies. Of late 
years, however, the English habit has prevailed of re- 
electing the same man without regard to party afifilia- 
tions ; ^ and this is the more striking because the President 
appoints the committees on rules and contested elections,^ 
which have, of course, no little importance. The idea 
that the presiding officer ought to be strictly impartial 
is not the only valuable suggestion the Italians have 
derived from England, for they have inherited Cavour's 
admiration for British parHamentary procedure, and in 
general they attempt to follow it. Unfortunately they 
have not done so in all cases, for, as we shall see when 
we come to consider the actual working of the govern- 

1 Brusa, p. 139; and see the list of the sessions of the various Parlia- 
Snents in the Manual of the Deputies. 

2 Brusa, pp. 140 and 156, note 2. Biancheri was President of the 
Chamber continuously from 1884 to 1892. Manual of the Deputies for 
1892 (pp. 800-802). In that year he was dropped for party reasons, 
and in fact the practice of looking on the President as the representative 
of a party has unfortunately revived. 

s Rules of the Chamber of Deputies, Art. 12. 



THE ADMINISTRATIVE SYSTEM. 135 

ment, tlie system of committees and of interpellations or 
questions has been copied mainly from the French and 
not the English practice. 

Such, briefly stated, are the position of the King and 
the composition of the Parliament ; but although the 
King and his ministers on the one hand, and the Par- 
liament on the other, are the great political forces 
whose interaction determines the character of the 
government, still it is impossible to appreciate the re- 
lations between the two, without some knowledge of 
the method of administration, the principles of local 
government, and the control exercised by the courts of 
law, because these matters have a direct bearing on the 
functions of the cabinet, and hence on the nature of 
the influence exerted upon it by the Parliament. 

The administration both of national and local affairs, 
and to some extent the judicial system of The admin- 
Italy, are modeled- on those of France, and toro7it£y 
they present the defects without all the ad- thSoV""'^ 
vantages of the original. This is particularly ^^^'^<'®- 
true of the administrative system, where Italy has 
copied the centralization, but has been unable to ac- 
quire the traditions which give real solidity to the 
body of officials. At first sight it seems strange that 
Cavour and his successors, with their admiration for 
English institutions, should have turned to the French 
bureaucracy as a pattern ; but there were Reasons for 
several reasons for their course. In the first *^' 
place the Napoleonic rule had already made the Italians 
familiar with the French form of administration. A 
far stronger motive came from the fact that after. Cavour 

VOL. I. 



138 ITALY. 

gave up tlie idea of a confederation, and strove to 
create a united kingdom of Italy, it became important, 
in view of the possible interference of foreign powers, 
to consolidate the different provinces as completely and 
rapidly as possible. The Italian statesmen tried, there- 
fore, to make the people homogeneous ; to remove as 
far as possible all local differences ; and to destroy all 
possibility of local opposition.^ The country, more- 
over, was very backward, and a great work of regen- 
eration had to be undertaken, especially in the south, 
where society was badly disintegrated and brigandage 
was rife. To accomplish this a highly centralized and 
autocratic system, in which the government could make 
itself quickly and decisively felt, was thought essen- 
tial ; ^ and it was believed, not without reason, that 
until the union was accomplished, and order had been 
established in Naples and Sicily, it was impossible to 
introduce general local self-government or universal 
Hberty. The old territorial divisions were therefore 
swept away, and replaced by artificial districts devoid, 
of course, of real local life. A centralized form of 
administration was set up, and the government was 
given a highly arbitrary power to interfere with the 
freedom of the individual. Such a system might have 
worked very well in the hands of a wise dictator, but, 
as some of the Italian writers have themselves remarked, 
it was so entirely inconsistent with the parliamentary 
form of government that one of them was sure to spoil 

1 See Brusa, pp. 23, 337 ; Jacini, / Conservatori, p. 55 et seq., Due 
Anni di Politica Italiana, pp. 93-94. 

2 See Brusa, pp. 253-54. 



THE ADMINISTRATIVE SYSTEM. 137 

the other, and experience has shown that both of them 
have suffered grievously from the combination.^ 

There is a marked contradiction in Italy between 
the theory and practice of government ; for Contrast in 
there is a strong ambition to be abreast of Jj^een^*^ 
the times and a general belief in the prin- prletS^of 
ciple of personal Hbertyj but the actual con- s^^^^^™^^"** 
dition of the nation has made it impossible to live up 
to these standards. A striking example of the con- 
trast between aspirations and results is furnished by 
the state of the criminal law, for capital punishment 
has been abolished, in spite of the fact that homicide 
is more common than in any other civilized country in 
Europe,^ and yet criminal procedure is in such a condi- 
tion that thousands of people have been arrested on sus- 
picion, kept in prison sometimes for years, and finally 
released because there was not sufficient ground for 
trial.^ Thus by her code Italy appears to be in ad- 
vance of most other nations, but in her criminal prac- 
tice she is really far behind them. The truth is that 



^ Cf. Jacini, / Conservatori, pp. 67-68 ; Minghetti, / Partiti Politici, 
p. 100 ; Pareto, " L'ltalie Economique," Revue des Deux Mondes, Oct. 
15, 1891 ; and see Bertolini, "I Pieui Poteri per le Eiforme Orga- 
niche," Nuova Antologia, June 1, 1894. 

2 Turiello, Fatti, pp. 330-32. 

^ See Speyer, in Unsere Zeit, 1879, vol. i. p. 576. Petruceelli della 
Gattina says (Storia d* Italia, p. 258) that in 1876, 93,444 persons were 
arrested on suspicion and let off because there was no ground for trial. 
This, it is true, was eleven years before the code was finally enacted ; 
nevertheless it illustrates the contrast between ideals and practice in 
criminal naatters, and in fact in that very year the abolition of the death 
penalty was voted by the Chamber of Deputies, but rejected by the 
Senate. 



138 ITALY. 

the successive governments, in view of the unsettled 
state of the country, have been afraid to place re- 
straints on their own power, and weaken an authority 
thought necessary for the preservation of order. Of 
course the result has been a good deal of arbitrary of&- 
ciaHsm and disregard of the rights of the citizen,^ but 
while this is a misfortune for the north of Italy, ex- 
traordinary and autocratic power has at times been in- 
dispensable in Sicily and the south.^ The impossi- 
bility, indeed, of giving effect to the theories of hberty 
that are constantly proclaimed from every quarter was 
forcibly illustrated by the only serious attempt that 
has been made to do so. When CairoH and Zanardelli 
became ministers in 1878 they tried to carry out their 
principles thoroughly. They permitted the constitu- 
tional right of public meeting to be freely exercised, 
and gave up the despotic practice of preventive arrest, 
trusting to the courts to punish offenders against the 
law ; but brigandage increased so fast, and other dis- 
turbances became so alarming, that the cabinet was 
driven from office, and its policy was abandoned. Of 
late years Zanardelli has again held office, and has 
succeeded in improving the administrative and judicial 
system to some extent, but the progress of the reform 
has been extremely slow, and the arbitrary power of 
the government, although reduced, still conforms even 
in quiet times far more nearly to French than to 
Anglo-Saxon notions. 

There are two matters in connection with the admin- 

1 Cf. Brusa, p. 183. 

2 Cf. Speyer, in Unsere Zeit, 1879, vol. i. p. 581. 



LEGISLATION BY ORDINANCE. 139 

istration that require special notice. One of tliem is 
the power of the executive officials to make 
ordinances. ihis is even more extensively nance 

1 . power. 

used than in France, and there are complaints 
that it is sometimes carried so far as to render the provi- 
sions of a statute nugatory/ although the constitution 
expressly declares that "the King makes the decrees 
and regulations necessary for the execution of the 
laws, without suspending their observance or dispensing 
with them." ^ The interpretation put upon this provi- 
sion is in fact so broad that the government is practically 
allowed to suspend the law subject to responsibility to 
Parliament, and even to make temporary laws which 
are to be submitted to Parliament later, — a power that 
is used when a tariff bill is introduced, to prevent large 
importations before the tariff goes into effect.^ The 
Parliament has, moreover, a habit of delegating legis- 
lative power to the ministers in the most astonishing 
way. In the case of the Italian criminal code, for 
example, the final text was never submitted to the 
Chambers at all, but after the subject had been suffi- 
ciently debated, the government was authorized to 
make a complete draft of the code, and then to enact 
it by royal decree, harmonizing it with itself and with 
other statutes, and taking into account the views ex- 

1 Brusa, pp. 170-72. 

2 Statute, Art. 6. The courts have power to refuse to apply an ordi- 
nance which exceeds the authority of the government, but, in practice, 
this is not an effective restraint. Brusa, pp. 171-72, 175, 187. 

' Brusa, pp. 186-87. In 1891 the customs duties on several articles 
were increased by royal decree, which was subsequently ratified by Par- 
liament. 



140 ITALY. 

pressed by the Chambers. The same was true of the 
electoral law of 1882, of the general laws on local gov- 
ernment and on the Council of State, and of many- 
other enactments.^ It may be added that although the 
Statuto does not expressly provide for it, the ministers, 
prefects, syndics, and other of&cials are in the habit of 
making decrees on subjects of minor importance.^ The 
preference indeed for administrative regulations, which 
the government can change at any time, over rigid 
statutes is deeply implanted in the Latin races, and 
seems to be especially marked in Italy .^ 

The other matter referred to as requiring special 
notice is the civil service. The host of ofB.- 
serviceand cials, who are, unfortunately, too numerous 
political and too poorly paid,^ can be appointed or dis- 
missed very much at the pleasure of the 
government, for although there are royal decrees regu- 
lating appointments and removals in many cases, they 

1 Brusa, pp. 175-76; Bertolini, "I Pieni Poteri," Nuova Antologia, 
June 1, 1894. Several laws of this kind may be found in the Manuals of 
the Deputies. They are issued in the form not of statutes, but of ordi- 
nances, and begin by reciting the legislative authority under which they 
are made. It is a curious fact that Italian statutes vary a great deal, 
sometimes containing only general principles, and leaving to the govern- 
ment the task of completing them by supplementary regulations, and 
sometimes going into minute details (Bi^usa, p. 171). Dupriez, who looks 
at the matter from a French standpoint, says (vol. i. p. 336) that in the 
struggle between the government and the Parliament over the limits 
of the ordinance power, the government has tried to extend its authority 
beyond measure, and the Parliament to dispute it even in the matter oi 
organizing the administrative service. 

2 Brusa, pp. 188-90. 

3 Minghetti, pp. 293-94. 
■* Brusa, p. 260. 



THE ABUSE OF PATRONAGE. 141 

do not appear to furnish a satisfactory guarantee.^ 
Here, then, is a great mass of spoils, in the distribu- 
tion of which the pohticians take an active part.^ Such 
decrees, providing for competitive examinations for 
admission to the service, are indeed common ; and in 
1890 a statute,^ affecting the officers in the department 
of public safety, was passed with provisions for such 
examinations, and for preventing removal without the 
consent of a standing commission. But civil service 
laws, like all others, depend for much of their effective- 
ness on the persons who execute them.* 

Let us look for a moment at the local government. 

1 Dupriez, vol. i. pp. 337^0 ; Brusa, pp. 252-55. For the scope of 
these decrees, see p. 261 et seq. 

2 Brusa, pp. 152-53 ; and see Dupriez, vol. i. pp. 340-42. 

3 Law of Dec. 21, 1890. 

* There are two bodies that exercise a considerable control over the 
government. One of these is the Council of State, which has, however, 
only an advisory power, except in matters of administrative justice, and 
in the case of provincial and communal officials whom it protects from 
arbitrary removal. On this subject see Brusa, p. 212 et seq. The laws 
of June 2, 1889, which regulate this body, may be found in the Manual 
of the Deputies for 1892, p. 357. The other is the Courts of Accounts 
(Corte del Conti), whose members can be removed only with the consent 
of a commission composed of the Presidents and Vice-Presidents of both 
Chambers. It has a limited supervision over the collection of the revenue, 
and passes finally on pensions and on the accounts of officials, provinces, 
and communes. It also makes a yearly report to Parliament on the 
accounts of each ministry ; but its most extraordinary function consists in 
the fact that all decrees and orders which involve the payment of more 
than 2,000 lire must be submitted to it for registration, and if it thinks 
them contrary to the laws or regulations it can refuse to register them. 
It is, indeed, obliged to register them if the Council of Ministers insists 
upon it, but in that case they must be transmitted to the Presidents of 
the Chambers together with the opinion of the Corte del Conti. Law 
of Aug. 14, 1862, Arts. 14, 18, 19 ; and see Brusa, pp. 219-24. 



142 ITALY. 

The Italian statesmen had at first a general belief in 
r 1 decentralization,^ but the force of circum- 

Liocal gov- ^ 

ernment. stanccs and a repugnance to the idea of fed- 
eration were so strong that the old territorial divi- 
sions, which could alone have furnished a solid basis 
for a decentralized system, were abandoned, and the 
whole country was cut up into a series of brand-new 
districts. These are the provinces, the circondari, the 
mandamenti, and the communes,^ of which the first 
and the last are the only ones of great importance. 
Until the Act of 1888, the powers conferred on the 
local bodies were extremely small, and even now they 
are far from extensive, for the whole system is copied 
from that of France, and, with some variations in de- 
tail, the organization and powers of the French local 
officers and councils have been followed very closely.^ 
A general description of the local government would 
therefore consist very largely in a repetition of what 
has been already said in the first chapter on France ; 
and hence it is only necessary to touch on a few sahent 
points, begging the reader to remember how great a 
power and how large a share of political patronage this 

^ In 1868 the Chamber actually voted an order of the day in favor of 
decentralization. Petruccelli della Gattina, pp. 192-95. 

2 In the provinces of Mantua and Venice the division is somewhat 
different, but is being brought into accord with the general plan. Brusa, 
p. 339. 

^ For a description of the local government see Brusa, p. 337 et seq. 
The full text of the law on the subject was fixed by royal ordinance 
on Feb. 10, 1889, in accordance with the Act of Dec. 30, 1888. It was 
followed by an elaborate ordinance regulating its execution, and on July 
7, 1889, and July 11, 1894, by acts amending the law. Manual of 
Deps., 1895, pp. 301-94. 



LOCAL GOVERNMENT. 143 

system places in tlie hands of the central authorities.' 
At the head of each province, which corresponds to 
the French department, is a prefect appointed by the 
King, and directly subject to the Minister of the In- 
terior. Like his French prototype, he is regarded as 
a political officer, and uses his influence more or less 
openly at elections.^ The chief executive magistrate 
of the commune is the syndic ; who is chosen, like the 
mayor in France, by the communal council from its own 
members, if the commune has more than ten thousand 
inhabitants or is the capital of a province or circondaro ; 
and in other cases is selected by the King from among 
the members of the council.* As in France, both the 
provinces and the communes possess elected councils. In 
Italy they are chosen for six years, one half being renewed 
every three years ; but the suffrage for these bodies 
was exceedingly restricted, until by the Act of 1888 it 
was extended so as to be somewhat wider, especially as 
applied to the peasants, than the suffrage for the elec- 
tion of deputies.^ The abuse of local machinery for 

* In practice the administration appears to be, if anything, even more 
centralized than in France, owing to the habit on the part of the officials 
of referring everything to the central government. Jacinl, / Conser- 
vatori, p. 130 ; Minghetti, / Partiti Politici, pp. 240-41. 

2 Brusa, pp. 225, 277. On the eve of the elections in 1892, forty-six 
out of the sixty-nine prefects were dismissed or transferred to other 
provinces, in order to help the government to carry the country. 

* By a law of July 7, 1896, all the syndics are now elected. 

8 The other communal and provincial bodies are the municipal giunta, 
which is elected by the communal council, and has executive powers ; 
the provincial deputation, which occupies a similar position in the prov- 
ince, and is elected by the provincial council ; the prefectoral council, 
appointed by the central government to assist the prefect ; and the pro- 
vincial administrative giunta, partly appointed and partly elected, which 



144 ITALY. 

political purposes, and the results on the public life of 
the nation, will be discussed later ; but it is proper to 
remark here that the resources of the local bodies are 
not adequate for the fulfillment of their duties, and 
this, combined with a love of municipal display, has 
been the cause of heavy debts, especially in the case 
of the larger cities, many of which have long been on 
the verge of bankruptcy/ 

There is one branch of the Itahan government which 
The "udiciai ^^^ ^^* bccu Centralized, and that is the ju- 
system. dicial systcm. The lower courts are, indeed, 
new creations, organized on a symmetrical plan very 
much resembHng the French ; but, in order apparently 
itsdecen- ^^* ^^ offcud the bcncli and bar of the old 
trahzation. principalities, the highest courts have been 
suffered to remain in the more important capitals, so 
that there are now five independent Courts of Cassa- 
tion, those of Turin, Florence, Naples, Palermo, and 
Rome, each of which has final and supreme authority, 
within its own district, on all questions of ordinary 
civil law.^ The Court of Cassation at Rome has, it is 
true, been given little by little exclusive jurisdiction 
over certain special matters ; ^ but the ordinary civil 

has a certain share in administrative justice, and whose approval is neces- 
sary for the validity of some of the most important acts of the local 
councils. For a list of these acts see the Local Government Law of 
Feb. 10, 1889, Arts. 142, 166-71, 173, and 223. 

1 See Brusa, pp. 365-67 ; Turiello, Proposte, pp. 56, 63-65. 

2 A Court of Cassation is a court of last resort, which considers only 
errors in law in the decisions of inferior tribunals. 

3 These are, conflicts of competence between different courts, or be- 
tween the courts and the administration ; the transfer of suits from one 
court to another ; disciplinary matters ; and writs of error in criminal 



THE JUDICIAL SYSTEM. 145 

jurisdiction is still divided among the five Courts of 
Cassation, which bear the same relation to each other 
as the hig-hest state courts in America/ There is no 
appeal from one to another, and no one of them feels 
bound to accept the decisions of the others, or to follow 
them as precedents. One cannot help thinking that this 
is an unfortunate condition, because there is nothing 
that tends more completely to consolidate a people, 
without crushing out local life, than a uniform admin- 
istration of justice. Italy has, indeed, a series of codes 
enacted at various times from 1865 to 1889, and cover- 
ing civil law, civil procedure, commercial law, criminal 
law, and criminal procedure ; but a code alone will not 
produce uniformity, because there is still room for 
differences of interpretation, and in fact the Italian 
Courts of Cassation often disagree, and there is no tri- 
bunal empowered to harmonize their decisions.^ 

As we have already seen in the case of France, the 
decision of civil and criminal questions forms 

. „ . , . . . „ , . . The courts 

only a part oi the admmistration oi lustice m and the 

. , T^ o 1 T ■ officials. 

continental xLurope, on account oi the distinc- 
tion drawn between public and private law.^ In order, 
therefore, to form a correct estimate of the position of 

cases, in complaints for violation of election laws, in civil suits against 
judges, and in questions of taxes and of church property. 

^ For the organization and jurisdiction of the courts, see Brusa, pp. 
231-38. 

2 Cf. Speyer, in U'7isere Zeit, 1879, vol. i. p. 576. 

^ Belgium presents an exception, for there the officials can be sued, 
and the acts of the government can be reviewed by the courts, as in an 
Anglo-Saxon country. Cf. Kerchove de Denterghem, De la Responsabilite 
des Ministres dans le Droit Public Beige. For Switzerland, see chap. xi. 
infra. 



146 ITALY. 

the courts, we must consider their relation to the gov- 
ernment, and their power to determine the legaHty of 
the acts of pubHc officers. In Italy the prefects, sub- 
prefects, syndics, and their subordinates still enjoy the 
so-called administrative protection, that is, they cannot 
be sued or prosecuted for their official conduct with- 
out the royal consent.^ This privilege is generally un- 
popular, and will no doubt be abolished when the pro- 
posed bill on the tenure of office is passed. Meanwhile 
the benefit of it is claimed more and more frequently, 
although the permission to proceed appears to be usually 
granted.^ But even when this protection has been 
taken away, the courts will not have as much authority 
as in England or America. The reader will remember 
that the officers of the French government formerly 
possessed a similar privilege, and were deprived of it 
after the fall of the Second Empire. He will remember 
also that the change made very little practical difference, 
because it was held that the ordinary courts had no 
power to pass on the legality of official acts, such ques- 
tions being reserved exclusively for the administrative 
courts. The result of abohshing the privilege will not 
be precisely the same on the other side of the Alps, 
because the problem has been worked out on somewhat 
different lines, a curious attempt having been made to 
establish a compromise between the English and the 
French systems. 

1 Law of Feb. 10, 1889, Arts. 8, 139. 

2 Brusa, p. 282 ; Turiello, Fatti, pp. 210-11. The permission to prose- 
cute is not necessary in the case of offenses against the election laws. 
Law of Feb. 10, 1889, Art. 100 et seq. ; Brusa, pp. 73, 130, note 1. 



ADMINISTRATIVE LAW. 147 

The subject of administrative law is, indeed, very 
confused in Italy, and a few years asfo it was . , . . 
in a thoroughly unsatisfactory condition, t^ativeiaw. 
When the union was formed, several of the component 
states possessed administrative courts of their own -, but 
in order to produce uniformity, and also with 
a view of furnishing the rights of the citizen the ordinary 
with a better guarantee, an act of March 20, 
1865, abolished all these tribunals, and provided that 
the ordinary courts should have exclusive jurisdiction of 
all criminal prosecutions, and of all civil cases in which 
a civil or political right was involved, the Council of 
State being empowered to decide whether such a right 
was involved or not.^ It was not clearly foreseen that 
this last provision would place in the hands of the 
government an effective means of tyranny ; ^ but such 
proved to be the case, for the Council of State, com- 
posed, as it was at that time, of members who could be 
removed at pleasure,^ showed little incHnation in dis- 
puted cases to recognize that any private rights were 
involved, and, there being no administrative courts at 
all, the government had an absolutely free hand as 
soon as the jurisdiction of the ordinary courts was 
ousted.* The attempt to place the rights of the citizen 

^ Legge sul Contenzioso Administrativo (March 20, 1865). See, espe- 
cially. Arts. 1, 2, 3, 13. 

2 Perhaps it would be more correct to say that it was not foreseen 
how this power would be used for party purposes. Minghetti, / Partiti 
Politici, p. 270 et seq. 

^ See Legge sul Consiglio di Stato of March 20, 1865, Art. 4. 

* See Brusa, pp. 212-13, 247 ; Minghetti, / Partiti Politici, p. 147 et 
seq. 



148 ITALY. 

more fully under the protection of the ordinary courts 
than in France had resulted in freeing the officials more 
completely from all control ; for, except when strong 
political motives come into play, arbitrary conduct on 
the part of the French officials is restrained by the 
administrative courts. This state of the law in Italy 
gave rise to bitter complaints, but it lasted until 1877, 
when the decision of conflicts, as they are called, or 
Administra- <iisputes about jurisdictiou between the ad- 
tive courts, ministration and the courts, was transferred 
to the Court of Cassation at Rome.^ StiU there was 
no system of administrative justice, and hence, however 
illegal, and however much in excess of the authority of 
the official who made it, a decree, ordinance, or other 
act might be, no redress could be obtained from any tri- 
bunal unless it could be shown that an actual legal right 
was violated.^ This omission in the judicial system was 
finally supplied by the statutes of 1889 and 1890, 
which reorganized the Council of State, created a spe- 
cial section of it to act as an administrative court, and 
conferred an inferior administrative jurisdiction on the 
provincial giunta.^ In order to give the council a con- 
siderable degree of independence, it was provided at 
the same time that the members, whose number is hm- 
ited, should be retired only on account of sickness and 
removed only for breach of duty, and in each case only 
after hearing the opinion of the Council of State itself.* 

1 Law of March 31, 1877 (Manual of Deps. 1892, p. 374). 

2 Cf. Brusa, pp. 247-50. 

^ These acts, June 2, 1889, and May 1, 1890, are printed in the Manual 
for 1892, at pp. 357 and 377. 
* Act of June 2, 1889, Art. 4. 



THE ADMINISTRATIVE COURTS. 149 

The section which acts as an administrative court 
enjoys a still greater degree of protection ; for it is 
composed of a president and eight other members 
selected from among the Councillors of State by the 
King, and of these eight not less than two nor more 
than four can be changed in any one year/ so that, 
although the body has not the permanence of a court 
of law, it is by no means a mere tool of the govern- 
ment. Except in purely political matters, and in certain 
questions relating to customs duties and conscription, 
it has power to decide whether the acts of the cen- 
tral or local officers are authorized by law, unless some 
special tribunal or the ordinary courts have jurisdic- 
tion.^ In brief, therefore, the legality of official acts 
is determined in civil cases by the ordinary courts 
when a question of private right, and by the adminis- 
trative courts when a question only of interest^ is in- 
volved. The function of the ordinary courts in these 
cases is, however, strictly Hmited to the protection of 
the individual, and does not involve an authoritative 
declaration of the law, for it is expressly provided that 
the judgment must be confined to the case at bar, and 
in that alone is the administration bound by the deci- 
sion.^ This principle is deeply rooted in the jurispru- 
dence of the nation, for the Statuto itself declares that 
the interpretation of the law in such a way as to be 
universally binding belongs exclusively to the legisla- 
tive power.* The Italian, indeed, has a dread of judge- 
made law, which is really the most wholesome form of 

1 Act of June 2, 1889, Art. 8. 2 Jd., Art. 24. 

» Act of March 20, 1865, Art. 4. * Statuto, Art. 73. 



150 ITALY. 

legislation, — a prejudice that certainly seems very 
strange when we consider what a large part of the law 
of the civilized world, and especially of the law of the 
Latin races, was developed by means of the edicts of 
the Roman praetors. 

It wiU be observed that the Italian system of admin- 
The Italian istrativc law differs from that of every other 
admlSstra- nation. According to the English principle, 
SeJsfrom ^hc Ordinary courts have jurisdiction in all 
cases, and the very idea of administrative law 
as a distinct branch of jurisprudence is unknown. In 
most of the continental countries, on the other hand, 
aU matters involving the legality of official acts are 
reserved for a special class of courts, which have exclu- 
sive cognizance of those questions which constitute the 
domain of administrative law ; but in Italy both classes 
of tribunals are called upon to decide the same ques- 
tions, the ordinary courts being specially empowered to 
protect legal rights. 

As seen on the statute-book, the Italian judicial 
system appears to be very good. It seems 
system ap- to provido the individual with more ample 
strong, but remedies, and a better guarantee against arbi- 
trary conduct on the part of the officials, 
than can be found in most of the countries of conti- 
nental Europe. But in fact the judiciary is not strong 
enough to protect the citizen effectually. This is 
chiefly due, no doubt, to the absence of those deep- 
seated traditions that are necessary to give the magis- 
trates a controlling authority over public opinion. It 
is due also to the existence of the five independent 



WEAKNESS OF THE JUDICIAL SYSTEM. 151 

Courts of Cassation, which prevents any one court from 
having the power that might be acquired by a supreme 
national tribunal ; and indeed it is self-evident that 
a decentralized judiciary can hardly be expected to 
restrain a centralized administration. Nor insufficient 
is the protection afforded to the bench sat- ^rthe*''''' 
isfactory. The constitution provides that ^^ ^^^' 
judges, except in the lowest courts, shall be irremovable 
after three years of service,^ and by statute they can be 
retired only on account of illness, and removed only 
for crime or neglect of duty, and in these cases only 
with the approval of the Court of Cassation at Rome. 
But a judge is not protected against a transfer from 
one judicial post to another of the same rank, and 
although by royal decree a commission annually ap- 
pointed by the court at Rome must be consulted before 
such a transfer can be made, its advice is not binding 
on the government.^ The judges are, therefore, by 
no means entirely independent of the executive, and 
complaints are often made that they are altogether too 
much under its control. It is impossible to say how 
far these complaints are justified,^ but it is certain that 

1 Statute, Art. 69. 

^ Brusa, pp. 277-78. In 1878 this decree was repealed for a time, and 
one hundred and twenty-two transfers were made in six months. Min- 
ghetti, pp. 134-35. 

^ Writing in 1878, Jacini (/ Conservatori, p. 29) said that, so far, the 
judiciary had resisted all party pressure, but since that time this does 
not seem to have been true. See Minghetti, uhi supra ; Turiello, Fatti, 
p. 316 ; Proposte, pp. 234-35 ; De Viti di Marco, " The Political Situation 
in Italy," Nineteenth Cent., Oct., 1895 ; Pareto, " LTtalie Economique," 
Revue des Deux Mondes, Oct. 15, 1891, Giornale dei Economisti, March, 
1895, p. 353 ; Ruiz, Ann. Amer. Acad, of Pol. Sci., Sept., 1895, p. 54 ; 

VOL. I. 



152 ITALY. 

the judiciary either has not enough power, or does not 
feel sufficiently free, to protect individuals against an 
oppressive abuse of political power, especially in local 
matters. This is true even in tranquil times, while 
the wholesale resort to martial law by the proclamation 
of the state of siege during the recent troubles in 
Sicily and at Carrara shows that the courts are unable 
to cope with disorder on any large scale.^ 

The judicial system has been dwelt upon here at 
what may seem an inordinate length because its condi- 
tion is one of the most important factors in the present 
political condition of the kingdom. 

There is one institution in Italy which is not strictly 
The church. ^ P^^'^ ^^ ^^^^ government, but is so closely 
The itaUans conucctcd with it, and has so direct an influ- 
w1k)11* ®^^^^ ^^^ politics, that it cannot be passed over. 

Catholic. rpj^-g -g ^Yie Catholic church. Within the 
last quarter of a century every country in central 
Europe has found itself confronted with the Catholic 
question, and has been obliged to grapple with it ; but 
the matter has a peculiar importance in Italy. Not 
because the Italian is fanatical. On the contrary, his 
intense religious fervor seems to have burned itself 
out during the Middle Ages, and has left him com- 

Wolffson, " Italian Secret Societies," Contemp. Rev., May, 1891 ; Lord, 
"Italia non Fara da Se," Nineteenth Cent., March, 1892. The charge 
that the courts were subject to political influence was made by the Parlia- 
mentary committee on the bank scandals in December, 1894. 

^ Contrast with these events the Chicago riots of 1894, where not only 
the military authorities never superseded the judicial, but where the na- 
tional troops were called into action solely by means of the United States 
courts. 



CHURCH AND STATE. 153 

paratively indifferent ; yet he clings to the church with 
a tenacity that is out of proportion to his zeal.^ This 
is due partly to the fact that he knows no other creed, 
and partly to his conservative nature, but chiefly, per- 
haps, to the fact that the ceremonies and rites of the 
Catholic faith, having been moulded for the most part 
by his own race, are closely fitted to his temperament, 
and therefore continue to attract him strongly, espe- 
cially on the aesthetic side. The nation is almost wholly 
CathoHc, and to-day, as in the past, the church in Italy 
is assailed, not by heretics, but by her own children. 

Cavour proclaimed the doctrine of a free church in 
a free state; but although the church is 
more independent of the government than trine of a 
might have been expected, it is impossible to in a free 
carry the principle out fully in a country 
where there is only one religious body, and where that 
body has always been intimately connected with public 
life. The church could not be independent of the 
state in Italy in the same sense that it is in America, 
and this fact has led some of the Italian advocates of 
the doctrine to misunderstand it completely. They 
complain, for example, that the actual relation between 
church and state is based on the idea that the church 
is a private association instead of a public institution, 
and lament that the state has surrendered too much its 

1 Sir Charles Dilke, in his Present Position of European Politics 
(pp. 261-62), quotes the saying that the Italians would be a nation of 
freethinkers if they had ever been known to think, and remarks that 
although the epigram is unfair, there is a certain measure of truth under- 
lying it. 



154 ITALY. 

control over the education of priests, ^ — expressions 
which amount to a complaint that the church is too 
free. But, although the principle cannot be applied 
rigorously in Italy, it has been carried out to a consid- 
erable extent. The state has abandoned the right of 
nomination to ecclesiastical offices, which had existed 
in some of the former ItaHan principalities; and the 
bishops are no longer required to take an oath of 
allegiance to the King.^ Moreover, the so-called exe-^ 
quatur 2HidL placet, that is, the requirement of permits 
from the government for the publication and execution 
of the acts of ecclesiastical authorities, have been given 
up.^ The state has also renounced all control over 
the seminaries for priests in Rome,^ and rarely inter- 
feres with those elsewhere ; ^ and finally the church has 
been granted freedom of meeting, of publication, and 
of jurisdiction in spiritual matters.® Conversely, the 
acts of the ecclesiastical authorities have ceased to be 
privileged. They have no legal force if they are con- 

1 See, for example, Brusa, pp. 426-27, 429. 

2 Act of May 13, 1871, Tit. ii. Art. 15. It has been decided that in 
the case of the lower clergy the oath was not dispensed with wherever 
it had been required by earlier laws (Brnsa, p. 428) ; and even the 
bishops are not entirely independent of the state, for the royal exequatur 
is still required for the enjoyment of their revenues (7c?., p. 437). At 
times these have actually been withheld, notably in 1877. Speyer, 
in Unsere Zeit, 1878, vol. ii. p. 604. 

3 Act of May 13, 1871, Tit. ii. Art. 16. 

4 Id., Tit. i. Art. 13. 

5 Brusa, p. 438. 

^ Id., Tit. ii. Arts. 14, 16, 17. Keligious processions outside the 
churches may be forbidden by the local authorities, if they are liable to 
interfere with public order or public health. Law of June 30, 1889, 
Art. 8. 



THE MONASTIC ORDERS. 155 

trary to law or violate private rights, and they are not 
exempt from the provisions of the criminal code.'^ 

A thorny question for the new kingdom was involved 
in the position of the monastic orders, many Treatment 
of which still held great tracts of land, but nLtic"^'^ 
had long outKved their usefulness and were °^ ®'^^' 
felt to be an anachronism. The solution adopted, 
though almost a necessity, was drastic, and illustrates 
how far the theory of a free church in a free state 
was at this time from being a reality. The order 
of Jesuits was absolutely excluded from the king- 
dom ; ^ and even in the case of the other bodies, which 
had not aroused such violent antipathy, the govern- 
ment determined, while sparing the existing members, 
to forbid the enrollment of any new recruits. By 
the statutes of 1866 and 1867, therefore, all these 
monastic institutions and most of the benefices without 
a cure of souls were suppressed, and their property 
transferred to the state to be employed for the support 
of religion ; but a pension for life was reserved to the 
present possessors, who were also allowed to remain in 
their establishments.^ Every traveler will remember 
the aged monks in white frocks who may still be 
seen wandering among the cloisters of the Val d' Ema, 
near Florence. These are the last representatives of a 
mighty order that once overshadowed Christendom, and 

1 Act of May 13, 1871, Tit. ii. Art. 17. The Penal Code of 1888 
specially punishes abuse of language by the clergy. Brusa, p. 61. 

2 Brusa, p. 56, note 4. 

3 Acts of July 7, 1866, and Aug. 15, 1867. See, also, Brusa, pp. 431- 
33. By an Act of 1873 these provisions were applied to Rome, but in 
a modiQed form. Brusa, lb. 



156 ITALY. 

with the spirit of romance which Italy cannot shake off 
even if she would, they have been allowed to drop away 
one by one until the monastery becomes silent forever. 

The convents were not the only great landowners 
and of the ^^ ^^^ churcli. Many of the higher secular 
of thl^cu-^ clergy were also richly endowed. But there 
lar clergy. ^^^ ^ stroug feeling that the soil of the 
country ought to be controlled by laymen, and that 
the larger ecclesiastical incomes ought to be reduced. 
This feeling found its expression in the same statutes 
of 1866 and 1867, by which all church lands, except 
those belonging to parishes, those used by bishops 
and other dignitaries, and buildings actually devoted 
to worship, were taken by the state and converted into 
perpetual five per cent, annuities ; ^ while all ecclesias- 
tical revenues, not of a parochial nature, were taxed 
thirty per cent., or in other words partially confiscated.^ 

By far the most difficult question was presented by 
The position *^® papacy. The Holy See had ruled over 
of the Pope. ^ territory of considerable size extending 
across the peninsula from the Mediterranean to the 
Adriatic. It pretended to trace its rights from a 
grant made in the fourth century by the Emperor 
Constantine the Great to Pope Sylvester, and in fact 

1 Act of July 7, 1866, Arts. 11-18. 

2 Act of Aug. 15, 1867, Art. 18. By the Act of July 7, 1866, Art. 
31, the revenues of bishops exceeding 10,000 lire are taxed progressively 
for the benefit of the general fund for religion, the whole excess above 
60,000 lire being so taken. But if, on the other hand, the income of a 
bishop falls below 6,000 lire, it is made up to that sum out of the gen- 
eral fund (Art. 19). Similar taxes for the benefit of the fund are 
imposed on other ecclesiastical revenues. In the Act of 1873, Rome was 
more gently treated. Brusa, pp. 432-33. 



THE POPE. 157 

its dominion was as old and well founded as that of 
any monarch in Europe. It felt that the sovereignty 
over its own States — the so-called Temporal Power — 
was necessary for its independence, and that if the 
Pope lived in a city subject to another ruler he could 
not remain entirely free in spiritual matters. But the 
Italians felt no less strongly that their country would 
never be a complete nation until it included everything 
between the Alps and the sea, with Rome as its capi- 
tal, and this feeling was fully shared by the Romans 
themselves. 

The northern and eastern part of the Papal States 
was annexed to the new Kingdom of Italy r^^^ -p^^^^ 
at the same time as Naples and Sicily, that nexef by' 
is in 1860 ; but Rome and the country about ^^ ^' 
it was protected by Napoleon III., whose power de- 
pended so much on the support of his ultramontane 
subjects that he could not safely desert the cause of 
the Pope. Italy chafed imder his interference, and 
waited uneasily until the war with Prussia forced him 
to recall his troops. Then came the revolution that 
overturned his throne. An Italian army at once 
crossed the frontier of the Papal States, and entered 
Rome on September 20, 1870. 

The problem before the government was a delicate 
one, because any appearance of an intention The law of 

the Papal 

to treat the Pope as an Italian subject would Guarantees. 
have excited the indignation of the whole Cathohc 
world, and might have led to foreign complications, 
or even to an armed intervention in favor of the Tem- 
poral Power. The cabinet determined, therefore, that 



158 ITALY. 

a law fixing definitely the position and privileges of 
the Holy See should be passed before the seat of 
government was moved to Rome. Recognizing the 
peculiar relations of the Pope to other States, the 
ministers proposed to make this law one of interna- 
tional bearing, so that it would have an effect analo- 
gous to that of a treaty, but they yielded to the firm 
opposition of the Left in the Chamber, and the act 
was finally passed as a piece of domestic legislation.^ 
This is the celebrated Law of the Papal Guarantees, 
which was enacted in May, 1871, and remains un- 
changed at the present day. Its object is to insure 
the freedom of the Pope in the exercise of all his 
spiritual functions, and for that purpose it surrounds 
him with most of the privileges of sovereignty. His 
person is declared sacred and inviolable ; assaults or 
public slander directed against him being punishable 
like similar offenses against the King. Public officials 
in the exercise of their duties are forbidden to enter 
his palace or its grounds ; and the same exemption 
applies to the place of meeting of a Conclave or (Ecu- 
menic Council. Searching any papal offices that have 
solely spiritual functions, or confiscating papers there- 
from, is prohibited, and it is provided that priests 
shall not be punished or questioned for publishing, 
in the course of their duties, the acts of the spiritual 
authority of the Holy See. The Pope is accorded the 
honors of a sovereign prince, and persons accredited 
to him enjoy all the immunities of diplomatic agents. 
He is guaranteed free intercourse with the bishops, 

^ Petruccelli della Gattina, Storia d' Italia, pp. 93-94. 



THE POPE. 159 

and indeed with the whole Catholic world, messages 
sent in his name being placed on the same footing 
as those of foreign governments. Moreover he is 
granted a perpetual annuity of over six hundred 
thousand dollars, which is entered in the great book 
of state debts, and is free from all tax. This grant 
he has always refused to accept, and every year it is 
returned to the treasury. Finally he is left in abso- 
lute possession of the palaces of the Vatican, the 
Lateran, and Castel Gandolfo, with all their buildings, 
gardens, and lands, free of taxes.^ 

It will be observed that this law, — which appears, 
by the way, to have been faithfully carried Refusal of 
out by the Italian government, — assures to accept the** 
the Pope absolute freedom in the exercise of ®^*"^*^°°- 
his functions as head of the Catholic church, and 
guards him against all personal disrespect. Neverthe- 
less neither Pius IX. nor his successor Leo XIII. has 
been willing to accept it ; and indeed they could not 
have done so without acknowledging the authority of 
the government by which it was enacted, and this 
they have never been willing to do. They have not 
ceased for a moment to protest against the destruction 
of the Temporal Power ; in fact, they have avoided 
everything that could possibly be construed as a rec- 
ognition of the Kingdom of Italy. The Pope has 
affected to consider himself a prisoner, and since the 

1 This is the law of May 13, 1871, several sections of which have 
already been cited. There is a criticism of the legal situation of the 
Holy See from a papal standpoint by Comte Rostworowski, entitled "La 
Situation Internationale du Saint-Siege," in the Ann. de I'Ecole Libre 
des Sciences Politiques, 1892, p. 102. 



160 ITALY. 

the royal cannon opened a breach in the Roman walls 
at the Porta Pia has he placed his foot outside the 
grounds of the Vatican.^ He has even refused to 
allow the clerical party to vote for deputies to Parlia- 
ment, on the ground that this would involve a tacit 
acknowledgment of the legality of the existing govern- 
ment ; and thus a large portion of the Italian people 
takes no part in national politics, although the same 
men vote freely and sometimes win victories at munici- 
pal elections.^ Such a condition of things is very unfor- 
tunate, for it tends to create a hostility between religion 
and patriotism, and makes it very hard for a man to be 
faithful both to his church and his country. If the 
Italians had any liking for other sects, these would no 
doubt' increase rapidly ; but as religion and Catholi- 
cism are synonymous terms in Italy, the antagonism be- 
tween church and state merely stimulates skepticism 
and indifference. 

It is not easy to see how the papal question will finally 
Solution o£ be solved. Pope Leo XIII was a man o£ 
question dif- great tact, and with marvelous dexterity he 

ficult for tlie ,. -.^-,. 

Vatican. changed the pohcy oi the Vatican so as to 
bring it into harmony with the nineteenth century. He 
made a peace with Bismarck by which the Iron Chan- 
cellor virtually acknowledged defeat ; and by his con- 
ciliatory tone towards the French Republic he made fair 
headway in checking the Radicals in France with their 
hatred of the church. Yet even Leo XIII was unable to 
come to terms with Italy. One thing is clear. Italy will 

1 Until 1888 he did not even appear in St. Peter's. 

2 In 1905 an encyclical of Pius X somewhat relaxed the prohibition. 



THE POPE. 161 

never give up Rome, nor is there the slightest prob- 
abihty that any foreign country will try to force 
her to do so ; and, indeed, it is said that even in the 
Vatican the restoration of the Temporal Power is 
considered hopeless.* To the outside observer it 
hardly appears desirable in the interest of the papacy 
itself, because with the loss of its secular functions, the 
Holy See has gained enormously in ecclesiastical 
authority. This is not an accident, for the destruc- 
tion of the Temporal Power is one step in the long 
movement for the separation of church and state, 
which during the last hundred years has been break- 
ing the local and national ties of the clergy in the 
different countries, and has thus made the Catholic 
church more cosmopolitan, more centralized, and more 
dependent on its spiritual head. Such, however, is 
not the view of many ardent Catholics, who are so 
dissatisfied with the present situation that a departure 
of the Pope from Rome has often been suggested ; but 
although on more than one occasion a removal has 
been said to be imminent, it is in the highest degree 

1 In an answer (" Italy, France, and the Papacy," Contemp. Rev., Aug., 
1891) to an article entitled " The Savoy Dynasty, the Pope, and the Re- 
public," by an anonymous writer (^Contemp. Rev., Apr., 1891), Crispi 
speaks of the possibility of a French intervention in favor of the Tem- 
poral Power as a real danger. One cannot help feeling that this must 
have been said rather for its effect than from conviction. In a previous 
answer to the same article (" Italy and France," Contemp. Rev., June, 
1891), Crispi makes the interesting statement that even in Rome only 
the highest church dignitaries want the Temporal Power, while over the 
rest of Italy the clergy never were papal, and are not so now. In a 
later number of the same Review the Triple Alliance and the papal 
question are further discussed by Emile de Laveleye (" The Foreign 
PoUcy of Italy," Contemp. Rev., Feb., 1892.) 



162 ITALY. 

unlikely, for the Holy See could not get from any 
other state in whose territory it might settle terms 
more favorable than those accorded by the Law of the 
Papal Guarantees, and even if it should accept a grant 
of complete sovereignty over some island or small tract 
of land, the loss in prestige from the change of resi- 
dence would be incalculable. The veneration of the 
past still chugs to Rome, and although the splendor 
of the Vatican is gone, the Pope bereft of his Tem- 
poral Power wields a greater spiritual influence than 
he has had for centuries. 



GERMANY 



CHAPTER IV. 

geemany: the structure of the empire. 

Cherbuliez has remarked that most countries which 
have grown in size have started with a com- 
of Germany pact territory and increased it by absorbing 
HoiyEoman the adjaccnt lands, but that Prussia began 
with her frontiers and afterwards filled in 
between them. The statement is almost hterally true, 
for early in the seventeenth century the Electors of 
Brandenburg, who were the ancestors of the Kings of 
Prussia, acquired the large Duchy of Prussia on the 
Baltic and the Duchy of Cleves on the Rhine, posses- 
sions which form to-day very nearly the extreme limits 
of the Prussian monarchy on the east and west. At 
that time these duchies did not touch the Electors' 
other territories, and in fact until less than thirty years 
ago several States were so wedged in among the Prus- 
sian dominions as to cut the kingdom quite in two. 
Nor was this the case with Prussia alone. The whole 
map of Germany as it stood in the last century was a 
mass of patches of different color mingled together in 
bewildering confusion. Not only were some of the prin- 
cipalities inconceivably small, but they often consisted in 
part of outlying districts at a distance from one another, 
and entirely surrounded by the estates of some other 
potentate. The cause of such a state of things is to be 



THE GROWTH OF PRUSSIA. 165 

found in the excessive development of the feudal sys- 
tem, which treated sovereignty as a private right of the 
ruler, so that princes dealt with their fiefs very much as 
men do with their lands to-day. They acquired them 
freely in all directions by inheritance, by marriage, and 
even by purchase, and, what was worse, at their death 
they divided them as they pleased among their sons. 
Still another source of confusion was presented by the 
bishops and other high church dignitaries, who held 
large estates which they ruled as temporal sovereigns. 
The result was that Germany was divided in a most 
fantastic way among several hundred princes, who owed, 
it is true, a shadowy allegiance to the Emperor as head 
of the Holy Roman Empire, but for all practical pur- 
poses were virtually independent. 

Almost alone among the German States Prussia was 
steadily gaining in size and power. Her The growth 
growth may be traced primarily to the Con- "* Prussia. 
stitutio Achillea of 1473, which forbade the sphtting 
up of the monarchy among the sons of the Electors, and 
thus kept all their dominions together ; but it was due 
chiefly to the thrift, the energy, and the sagacity of the 
rulers of the House of Hohenzollern. At the close of the 
thirty years' war, in 1648, the Great Elector obtained 
possessions which made his domains larger than those of 
any other German State except Austria, and in the next 
century the annexations of Frederic the Great 

,,,,, 1 ' pi'i* Cheeked for 

more than doubled the population oi ins king- a time, but 
dom. The sfrowth of Prussia was suddenly helped by 

° / Napoleon. 

checked by an event that tended ultimately 

to hasten its development. This was the outbreak of 



166 GERMANY. 

the French Revolution and the career of Bonaparte. 
When a series of victories had laid Germany at his feet, 
Napoleon suppressed a large number of petty principali- 
ties including all the ecclesiastical ones, and combined 
the smaller States that remained into the Confederation 
of the Rhine. He also deprived Prussia of half her 
territory, thinking by these means to reduce her to 
impotence, and create in the heart of Germany a body 
that would always be devoted to the cause of France. 
But in fact the petty principalities had been too small 
to act separately or to combine effectively, and too 
independent to be made serviceable by any sovereign ; 
and by suppressing them Napoleon had given the Ger- 
mans some httle capacity for organization, which was 
used against him as soon as the tide turned.^ 

After his overthrow Germany was reorganized by 
The Ger- *^^ treaty of Vienna, and the States, which 
federation ^^^ numbered only thirty-nine, were formed 
and the Diet. ^^^^ ^ j^^^^ Confederation. This was not 

properly a federal union, but rather a perpetual in- 
ternational alliance, the States remaining separate and 
independent, except for matters affecting the external 
and internal safety of Germany. The only organ of 
the Confederation was a Diet composed of the diplo- 
matic agents of the different States, who acted like 
ambassadors, and voted in accordance with the instruc- 
tions they received from their respective governments. 

^ This is very well stated by Colonel Malleson in his Refounding of the 
German Empire, pp. 4-6. Napoleon prophesied that within fifty years all 
Europe would be either Republican or Cossack. One of the chief causes 
of the failure of this prediction has been the creation of a united Germany, 
which Napoleon himself unwittingly helped to bring about. 



THE GERMANIC CONFEDERATION. 167 

It had power to declare war and make peace, to or- 
ganize the federal army, to enact laws for the purpose 
of applying the constitution, and to decide disputes 
between the States ; but it had no administrative offi- 
cers under its command, the federal laws being exe- 
cuted entirely by the officials of the States. Hence the 
only means of getting its orders carried out in case a 
State refused to obey them was by the process known 
as federal execution, which meant that the Diet called 
on one or more members of the Confederation to at- 
tack the recalcitrant State, and by invading its territo- 
ries to compel submission. The procedure in the Diet 
was a compHcated one. For ordinary matters it acted 
by sections called curice, when the eleven largest 
States had one vote apiece, the other twenty-eight 
being combined into six groups each of which had a 
single vote. For constitutional questions, on the other 
hand, and those relating to peace and war, the Diet 
proceeded m plenum, and in that case each of the 
smaller States had one vote, while the fourteen largest 
had two, three, or four votes apiece.^ This distribution 
of votes was by no means in proportion to population, 
for the largest States were much more than four times 
as big as the smallest, but it was a distinct recognition 
of an inequality of rights on the part of the States, 
and as such it still retains an especial importance 
because the arrangement of the votes in the plenwm 
has continued almost unchanged in one of the chief 
organs of the Empire to-day. It must not be supposed, 

^ Six of the States had four votes, five had three, three had two, and 
twenty-five had one. 



168 GERMANY. 

however, that the influence of the States in the Diet 
was determined by the number of their votes, for 
Austria, which had a permanent right to the presi- 
dency of the Assembly, and Prussia, which had a per- 
manent right to the vice-presidency, exercised in fact 
a controUing authority. When these two great powers 
agreed they had their own way ; when they disagreed, 
which often happened, the opinion of Austria usually 
prevailed. 

The wars of Napoleon did a great deal more for 
Failure of Grcrmany than to suppress petty principal- 
attempt^to^ itics and give rise to a clumsy confederation. 
manyin'^^ They awakeucd a sentiment of German na- 
tionahty. At first this was only a sentiment, 
and for a long period it had no practical results. It 
was especially strong among the Liberals, and grew 
stronger as time went on ; but under the reaction that 
followed the overthrow of Napoleon, the Liberals had 
little influence, until the convulsions of 1848 and 1849 
brought them to the front. At this time they tried 
hard to bring about a national union of Germany, but 
they were sadly hampered by their theoretical views 
and their want of pohtical experience. Their aim was 
a German state constructed on an ideal model, and 
they lacked the quality which is essential to real states- 
manship, — the power to distinguish the elements in 
the existing order of things which have a solid basis, 
to seize upon these, and adapt them to the end in view. 
Hence their efforts expended themselves in declamation 
and academic discussion, and came to nothing. In 
May, 1848, they succeeded in bringing together at 



LIBERAL MOVEMENTS OF 1848. 169 

Frankfort a National German Parliament elected by 
universal suffrage, and i£ this body had proposed 
quickly any rational plan for a union of Germany, the 
chances of its adoption would have been very good, 
for every government in the country had been forced 
to give way before the fierce onslaught of the Liberal 
movement. But unfortunately more than four months 
of precious time were consumed in debating the pri- 
mary rights of the citizen, and when these were finally 
disposed of the tide was beginning to ebb. At last, 
in March, 1849, a constitution was agreed upon, and 
the imperial crown was tendered to the King of Prus- 
sia ; but the offer came too late. Had it been made 
in the preceding summer it might have been accepted, 
but now the revolution had spent its force. Austria, 
at first paralyzed by insurrection, had now recovered 
from the shock, was rapidly putting down her rebel- 
lious subjects, and under the able leadership of Prince 
Schwartzenberg was determined to prevent any re- 
organization of Germany which would diminish her 
influence. After a feeble struggle Prussia yielded 
to her more determined rival, the revolutionary move- 
ment came to an end, and the old Confederation was 
restored. 

Again a period of reaction set in, which lasted about 
ten years, when Germany was thrilled by the 
events in Italy, and the Liberals again be- 
came powerful. Whether they would have avoided 
their former mistakes and succeeded better it is im- 
possible to say, for just at this time there appeared 
upon the scene a man who was destined to stamp his 



170 GERMANY. 

will on Germany, and change the whole face of Euro- 
pean politics. That man was von Bismarck. He be- 
longed to the lesser Prussian nobility, which is the 
most conservative class in the race ; but he was of far 
too large a calibre to be bound down by traditional 
prejudices; and indeed he had already formed very 
decided opinions of his own on the subject of German 
unity. He had served as a representative of Prussia 
at the Diet, and had learned that a German nation 
was impossible so long as the two great powers — 
Austria and Prussia — were contending for a mas- 
tery. He saw that the first step must be the forcible 
expulsion of Austria from all share in German poHtics, 
and he beheved that union could never be brought 
about by argument, that the Germans could not be 
persuaded, but must be compelled to unite, that the 
work must be done, as he expressed it, by blood and 
iron. 

An important advance towards closer relations be- 
tween the States had, indeed, been made long ago by 
the creation of the ZoUverein or customs union. 
This had been founded by Prussia in the early part 
of the century, and had gradually been extended until 
it included almost all the German States, except Aus- 
tria, which had been jealously excluded by the Prus- 
sian statesmen ; but valuable as the ZoUverein was 
in teaching the people their common interests, Bis- 
marck was no doubt right in thinking that no further 
progress could be expected without the use of force. 
Now it was precisely on this point that his methods 
differed from those of the Liberals, for war formed no 



BISMARCK AND THE WAR OF 1866. 171 

part of their programme, and for that very reason they 
were unable to understand his poHcy. In 
1859 they had obtained a majority in the tutionai con- 
lower house of the Prussian Parliament, and 
had very soon become involved in a quarrel with King 
William over the reorganization of the army, on which 
he had set his heart.^ In 1862 the King turned to 
Bismarck and made him the President of the Council. 
Bismarck submitted to the chamber a budget contain- 
ing the appropriations for the military changes, and 
when the chamber refused to pass it he withdrew it, 
and governed without any budget at all. This he was 
enabled to do, because the taxes were collected under 
standing laws which required no reenactment, and in 
fact could not be changed without the consent of the 
crown ; and because a doctrine was developed that in 
case the King and the two houses were unable to 
agree upon appropriations, the King was entitled to 
make all those expenditures which were necessary in 
order to carry on the government in accordance with 
the laws ree'ulatino- the various branches of the admin- 
istration. The Liberals were furious at this budget- 
less rule, but Bismarck proceeded in spite of them. 
He persuaded Austria to join Prussia in wresting the 
duchies of Schleswig and Holstein from Denmark in 
1864, and then contrived to quarrel with her about 
the disposition to be made of them. The majority in 
the German Diet sided with Austria, and ordered the 

^ William became Regent on Oct. 7, 1858, and on the death of his 
brother Frederick William IV., on January 2, 1861, he became King. 



172 GERMANY. 

troops of the Confederation mobilized against Prussia. 
rp, t Then followed the war of 1866, and the 

The war or ' 

1866. crushing defeat of Austria and the smaller 

German States that took her part. 

Bismarck had originally intended to compel all the 
Prussian States cxccpt Austria to form a federal union, 
andThe''''^ but the intervention of Napoleon III forced 
manCo^ra- l^iHi to abaudou the plan, and limit the Con- 
eration. federation to the country north of the river 
Main.^ He therefore determined as a compensation to 
increase the direct strength of Prussia by annexing the 
States that had fought against her.^ Hanover, Electo- 
ral Hesse,^ Nassau, and Frankfort, besides Schles- 
wig-Holstein, were accordingly incorporated in Prussia, 
while with the other States north of the Main a new fed- 
eral union was formed under the name of the North 
German Confederation.* This had for its president 
the Prussian King ; and for its legislature two cham- 
bers, — one the Reichstag, a popular assembly elected 
by universal suffrage, and the other the Bundesrath, 
or federal council, which was copied from the old 

^ Luxemburg and Limburg, which belonged to Holland, had been a 
part of the old Confederation, but were allowed to drop out at this time, 
and were not included in the reorganization of Germany. This was true 
also of the tiny principality of Lichtenstein in the south. 

2 Von Sybel, Begrundung des Deutschen Reiches, book xix. ch. ii. 

^ Also called Hesse-Cassel to distinguish it from Hesse-Darmstadt or 
grand-ducal Hesse, which, being the only Hesse remaining in existence 
as a separate State, is hereinafter called simply Hesse. 

^ The constitution of the Confederation was first agreed upon by the 
governments of the several States, then accepted with slight modifica- 
tions by a National Assembly elected by universal suffrage for the pur« 
pose, and finally ratified by the legislatures of the States. 



THE NORTH GERMAN CONFEDERATION. 173 

Diet, and composed in the same way of the plenipo- 
tentiaries of the different States, but was endowed 
with pecuHar and extensive powers. Austria was ex- 
eluded from all participation in German politics ; while 
the four States south of the Main — Bavaria, Wurtem- 
herg, Baden, and Hesse ^ — became independent, and 
were expressly left at liberty to form a separate union 
among' themselves. As a matter of fact, they made 
offensive and defensive alliances with the Confeder- 
ation, and formed with it a ZoUverein or customs 
union, whose organs were the two chambers of the 
Confederation reinforced by representatives from the 
southern States. Every one felt that the union of 
Germany was incomplete so long as these States were 
not a part of it ; but Bavaria and Wurtemberg were 
reluctant to surrender their independence ; and the 
enthusiasm aroused by the war with France in 1870 
was required to raise the sentiment for German 
nationality to such a pitch as to sweep them into line. 
Even then they demanded and obtained special privi- 
leges as the price of their adhesion; but at last all 
the difficulties were arranged, and in the autumn of 
1870 treaties were made with the four southern States 
whereby they joined the union. The name of the 
Confederation was changed at the same time to that 
of " German Empire," the president being The German 
given the title of Emperor ; and in the course ^"^p"^^- 
of the following winter the changes and additions 

1 This is Hesse-Darmstadt. It lay on both sides of the Main, but 
the part on the north of that river was already included in the North 
German Confederation. 

VOL, I 



174 GERMANY. 

entailed by these treaties were embodied in a new draft 
of the constitution.^ 

The constitution has nothing about it that is abstract 
Practical ^^ ideal. It was drawn up by a man of 
thrcTmti°* affairs who knew precisely what he wanted, 
tution. ^^^ understood very well the limitations im- 

posed upon him, and the concessions he was obliged to 
make to the existing order of things. His prime object 
was to create a powerful military state, and hence, as 
has been pointed out, the articles on most subjects are 
comparatively meagre, but those on the army, the navy, 
and the revenue are drawn up with a minuteness 
befitting the by-laws of a commercial company.^ 

Before proceeding to a description of the organs of 

^ Cf. Laband, Deutsches StaatsrecTit, 2d ed. eh, i. In 1873 three 
amendments were made in this instrument. The first (that of Feb. 25) 
abolished the provision limiting the right to vote in the Reichstag, on 
those matters which by the constitution are not common to the whole 
Empire, to the representatives of the States affected. The second 
(that of March 3) put the lighthouses, buoys, etc., along the coast under 
the control of the federal government ; and the third (that of Dec. 20) 
extended the legislative power of the Empire over the whole field of civil 
and criminal law. It had previously covered contracts, commercial law, 
and criminal law. Except for a change in the term of the Reichsta,g in 
1888 from three to five years, the constitution has remained unaltered 
since that time, but substantial changes in the fundamental law of the 
Empire have been made without a formal modification of the text. 
(See Laband, vol. i. pp. 48-49, 51.) Some of the German jurists main- 
tain that such a practice is wrong (von RiJnne, StaatsrecTit des Deutschen 
Reiches, 2d ed. pp. 31-34; Meyer, Lehrhuch des Deutschen Staatsrechts, 
p. 416) ; others that it is quite proper, provided the majority required in 
the Bundesrath for a formal amendment of the constitution is in fact 
obtained. (Laband, vol. i. pp. 545-49; Arndt, Verfassung des Deutschen 
Reiches, pp. 290-91.) For the method of amending the constitution, aee 
pages 246, 250-51, infra. 

^ Lebon, Etudes sur VAllemagne Politique, Introd., p. iii. 



THE IMPERIAL CONSTITUTION. 175 

the state, it will be worth while to examine the nature 
of the Confederation. We are in the habit of 
speaking of the German Empire as a federal the Confed- 
government, and rightly ; but we must bear 
in mind that it departs essentially from the type which 
we commonly associate with that term, and which is 
embodied in our own constitution. We con- -r , . 

LiSLTge legis- 

ceive of a federal system as one in which there ^**^^f ^"*^ 

•^ small execu- 

is a division of powers between the central t^^^ po'^^^rs. 
government and the States, according to subjects, so 
that in those matters which fall within the sphere of 
federal control the central government not only makes 
the laws, but executes them by means of its own 
of&cials. Thus Congress enacts a tariff; the United 
States custom house collects the duties ; and the fed- 
eral courts decide the questions that arise under the 
law. But all this is very different in Germany. There 
the legislative power of the central government is far 
more extensive than in this country, for it includes 
almost everything that is placed under the control of 
Congress and many other matters besides. In addition 
to such subjects as customs duties and taxes, the army 
and navy, the consular service, and the protection of 
foreign commerce, which are obviously essential, the 
list comprises many matters of domestic legislation. It 
covers not only the posts and telegraphs,^ transporta- 
tion on streams running through more than one State, 
and extraditions between the States, but also in general 
terms railroads,^ roads and canals, citizenship, travel, 

^ Except in Bavaria and Wurtemberg. 
* Except in Bavaria. 



176 GERMANY. 

change of residence, and tlie carrying- on of trades, 
also the regulation of weights and measures, of coinage 
and paper money, and of banking, patents, copyrights, 
and of medical and veterinary police. Moreover, it 
includes the regulation of the press and associations, 
and finally the whole domain of ordinary civil and 
criminal law and of judicial proceedings. All these 
things are declared subject to imperial legislation and 
supervision.^ 

The administrative power of the Empire, on the other 
hand, is very small, the federal laws being carried out 
in the main by the officers of the States as under the 
Confederation of 1815. Except, indeed, for foreign 
affairs, the navy, and to some extent the army and the 
postal and telegraphic service, the executive functions 
of the Empire are limited for the most part to the 
laying down of general regulations, and a supervision 
of their execution by the several States.^ Thus the 
federal government can enact a tariff, make regula- 
tions which shall govern the custom-house officers, and 
appoint inspectors to see that they are carried out ; but 
the duties are actually collected by state officials.^ One 

^ Art. 4 of the constitution and the amendment of Dec. 20, 1873. 

^ See Laband, § 66. In the case of the army (Const. Arts. 63-66) and 
the posts and telegraphs (Art. 50), the highest officers are appointed by 
the Emperor, who gives them their orders, while the subordinates are 
appointed by the States. 

^ As a rule the whole net revenue flows into the imperial treasury, but 
by the tariff act of 1879 the net revenue from customs duties above one 
hundred and thirty million marks is divided among the States in propor- 
tion to their population. In case the receipts of the Empire are not equal 
to its expenses, the deficiency is covered by means of contributions called 
Matricularbeitrdge assessed on the different States in proportion to theii 



NATURE OF THE FEDERAL UNION. 177 

naturally asks what happens if a State refuses or fails 
to carry out a federal law. The matter is reported to 
the Bundesrath, which decides any controversy about 
the interpretation of the law.^ But suppose the State 
persists in its refusal to administer the law, what can 
the federal government do ? It cannot give effect to 
the law itself, nor has it any officials for the purpose. 
Its only resource is federal execution, — that is, an 
armed attack on the delinquent State, — which can be 
ordered by the Bundesrath, and is carried out by the 
Emperor.^ This last resort has never been used, nor is 
it likely to be, because the Emperor is also the King of 
Prussia, and Prussia alone is not only larger than any 
other State, but larger than all the rest put together. 
Execution against Prussia is therefore doubly out of 
the question ; and any other State would be so easily 
overpowered that it is certain to submit, rather than 
provoke an appeal to force. 

Another conception that we associate with federal 
government is an equality of rights among the mem- 
population. (Const. Art. 70, and see Laband, § 126.) This was originally- 
intended to be a subsidiary and exceptional source of revenue, but owing 
to the quarrel between Bismarck and the Reichstag on the subject of 
federal taxation, the Matricularbeitrage became large and permanent. 
(Cf. Lebon, Allemagne, p. 106 et seq.) Under the present system the 
excess of customs duties is paid to the States, and returned by them as 
contributions, — a practice established in order to preserve the control of 
the Reichstag over the imperial revenues, for the assessments upon the 
States require a vote of that body, whereas the customs duties once voted 
can be collected without further authorization, and the tariff cannot be 
repealed without the consent of the Bundesrath, which for this purpose 
is entirely subject to the will of the Emperor. See page 247, infra. 

1 Const. Art. 7, § 3. 

2 Const. Art. 19, and see Laband, vol. i. pp. 105-6. 



178 GERMANY. 

Lers. But in the German Empire all is inequality. It 
inequaHty would, indeed, have been impossible to make 
among*the ^ federation on really equal terms between 
members. ^ number of States, one of which contained 
three fifths of the total population, while the other 
twenty-four contained altogether only two fifths. The 
compact could not fail to resemble that between the 
lion and the fox, or rather a compact between a lion. 
Privileges of ^^^ ^ dozcu foxcs, and B, score of mice. The 
Prussia. larger States are accorded all sorts of privi- 
leges, and so much of the lion's share of these falls to 
Prussia that it is hardly too much to say that she rules 
Germany with the advice and assistance of the other 
States. In the first place she has a perpetual right to 
have her King the Emperor of Germany.^ Secondly, 
amendments to the constitution — although 

Under the . . , -, . . . . 

eonstitu- requiring only an ordinary majority vote in 
the Reichstag — are defeated in the Bundes- 
rath if fourteen negative votes are thrown against them, 
and as Prussia has seventeen votes in that body, she 
has an absolute veto on all changes of the constitution.^ 
Besides this, it is expressly provided that in the case of 
all bills relating to the army, the navy, the customs 

1 Const. Art. 11. 

2 Const. Art. 78. In the North German Confederation a two thirds 
vote in the Bundesrath was necessary for a change in the constitution, 
but when the South German States were admitted, Prussia had no longer 
a third of the delegates, and in order to preserve her veto the proportion 
required was increased to three quarters. Finally at the instance of 
Bavaria, which wanted to enlarge the power of the States of the second 
size, it was agreed that fourteen negative votes should be enough to 
defeat an amendment to the constitution. Arndt, p. 290; Robinson, 
The German Bundesrath, p. 40. 



PRIVILEGES OF PRUSSIA. 179 

duties, or the excises, and in the case of all proposals 
to revise the administrative regulations for collecting 
the revenue, the vote of Prussia in the Bundesrath is 
decisive if cast in favor of maintaining the existing 
institutions.^ In other words, Prussia has a veto on all 
measures for making changes in the army, the navy, 
or the taxes. She has also the casting vote in case of a 
tie in the Bundesrath,^ and the chairmanship of all the 
standing committees of that body.^ 

These are Prussia's constitutional privileges ; but she 
has others obtained by private agreement with 
her smaller partners ; for the several States are cjai conven- 

. tions witt 

at liberty to make conventions or treaties with the otiier 

1 • -t ^ PC • 1 • States. 

each other m regard to the affairs that remain 

subject to their control.* When the North German 

Confederation was formed, universal military 

..,.11 The army. 

service and a uniiorm organization like that 
of Prussia were introduced into all the States, but the 
army was not made exclusively a national or left en- 
tirely a state institution.^ The constitution provides 
that the military laws shall be made by the Empire,^ and 

1 Const. Arts. 6, 35, and 37. ^ Const. Art. 7. 

8 Const. Art. 8 ; Laband, vol i. p. 264. Except the committee on 
foreign affairs, where, as will be explained hereafter, it would be of no 
use to her. 

* Laband, § 63. To some extent the States are at liberty to make 
separate conventions with foreign powers, and they have a right to send 
their own representatives to foreign courts. Laband, § 71. 

^ Const. Arts. 57-68. The last eight of these articles do not apply to 
Bavaria, and only partially to Wurtemberg. See page 250, infra. The 
expense of maintaining the army is borne by the Empire. Unlike the 
army, the navy is a purely national institution. Art. 53. 

^ The double position of the Prussian monarch comes out curiously 
here, for the constitution provides : first, that the military laws and regu* 



180 GEEMANY. 

declares that the forces of the country shall be a single 
army under the command of the Emperor, whose orders 
they are bound to obey. It gives him a right to inspect 
and dispose of the troops, and to appoint all officers 
whose command includes the entire contingent of a 
State. It provides also that the selection of the gen- 
erals shall be subject to his approval, but it leaves to 
the States the appointment of all inferior of&cers, and 
the management of their troops in other respects. Now 
these reserved rights were of little value, and all but 
three of the States transferred them to Prussia, chiefly 
in consideration of an agreement on the part of the 
Emperor not to remove the troops from their own ter- 
ritory except in case of actual necessity. Thus the 
contingents of these States are recruited, drilled, and 
commanded by Prussia, and form, in short, an integral 
part of her army.^ 

A number of conventions of a simihar character, af- 
fecting other public matters, such as the pos- 
with Wai- tal service and the jurisdiction of the courts, 
have been concluded between the States ; but 

latlons of Prussia shall be in force throughout the Empire ; second, that 
thereafter a comprehensive imperial military law shall be enacted; 
and third that any future general orders of the Prussian army shall 
be communicated by the military committee of the Bundesrath to the 
commanders of the other contingents for appropriate imitation. 

1 Some of the States transferred all their rights (Baden with a pro- 
vision that her troops should form a separate corps) ; others retained 
certain rights, mainly of an honorary nature, but agreed that their 
troops should be united with the Prussian army, and that Prussia should 
appoint the officers. Only Bavaria, Saxony, and Wurtemberg still exer- 
cise the military functions reserved to them by the constitution. Cf. 
Laband, § 94, iii. ; Schulze, Lehrbuch des Deutschen Staatsrechts, § 335; 
Meyer, Lehrbuch, § 197. 



PRIVILEGES OF PRUSSIA. 181 

tlie most comprehensive compact of all was made by 
Waldeck. The ruler of this little principality was 
crippled with debts, and unable to raise the money 
required for the reorganization of his army. So he 
sold his governmental rights as a whole to the King 
of Prussia, retired from business, and went to Italy 
to live upon his income, while the Prussian govern- 
ment, having bought the good-will of his trade, pro- 
ceeded to carry it on as his successor. There is some- 
thing decidedly comical in treating the right to govern 
a community as a marketable commodity, to be bought 
and sold for cash; but to Bismarck the matter pre- 
sented itself as a perfectly natural business transac- 
tion, and in fact the contract bears a strong resem- 
blance to the lease of a small American railroad to a 
largfer one. 

Such are the special privileges of Prussia. Those 
reserved to the other States are far less exten- 

Pnvileges 

sive. By the constitution Hamburg and of the other 
Bremen had a right to remain free ports, out- 
side of the operation of the tariff laws ; ^ but and Bre- 

... men. 

both of them have now surrendered this privi- 
lege.^ The other special rights are mostly enjoyed by 
the southern States, and were given to them as an in- 
ducement to join the Confederation. Thus Bavaria, 

1 Const. Art. 34. 

^ The treaty for this purpose was made with Hamburg in 1881, and 
went into effect Oct. 1, 1888. That with Bremen was made in 1885. 
For an account of these treaties and the way they were brought about, 
see Blum, Das Deutsche Reich zur Zeit Bismarck's, p. 360 et seq. ; Laband, 
vol. ii. pp. 901-4. 



182 GERMANY. 

Wurtemberg, and Baden are exempt from imperial ex- 
Bavaria cises on brandj and beer, and have a right 
berg*£md to ^^y excises of their own on these articles.^ 
Baden. Bavaria and Wurtemberg have their own 
postal and telegraph services, which are subject only to 
general imperial laws.'^ Except for the principle of 
universal military service, and the agreement to con- 
form to the general organization of the imperial army, 
Bavaria has in time of peace the entire charge of her 
own troops, the Emperor having only a right to inspect 
them ; while Wurtemberg, although not so much fa- 
vored as this, has greater military privileges than the 
remaining States.^ Bavaria is further exempt from 
imperial legislation in regard to railroads,* and to resi- 
dence and settlement;^ and finally, by the constitu- 
tion or by military convention, Bavaria, Saxony, and 
Wurtemberg have a right to seats on the committees 
of the Bundesrath on foreign affairs and on the army 
and fortresses.^ In order to guarantee more effectually 
these privileges, it is provided that they shall not be 

1 Const. Art. 35. But in 1887 they gave up their privileges in regard 
to brandy. See Blum, p. 532 ; Laband, vol. ii. pp. 920, 923-24. 

2 Const. Art. 52. 

3 Treaties of Nov. 23, 1870, with Bavaria ; and Nov. 25, 1870, with 
Wurtemberg ; incorporated in the constitution by a reference in the Ap- 
pendix to Part XI. 

* Except in the case of lines that have a strategic importance. Const. 
Art. 46. 

6 Const. Art. 4, § 1. 

« Const. Art. 8 ; Laband, vol. i. p. 113. By the treaty of Nov. 23, 
1870 (SchlussprotokoU, Art. ix.), Bavaria has a right to preside over the 
Bundesrath in the absence of Prussia, but as this never happens, the privi- 
lege is merely honorary. 



PRIVILEGES OF THE SMALLER STATES. 183 

changed "wdthout the consent of the State entitled to 
them.^ 

From this description of the privileges of the differ- 
ent States it is evident that the German Em- 
pire is very far from being a federal union of a eonWa-^ 
the kind with which we are familiar. It is oiTconfed- 
rather a continuation of the old Germanic modified^ 
Confederation, with the centre of gravity 
shifted from the States to the central government, and 
the preponderating power placed in the hands of 
Prussia, — the other large States retaining 
privileges roughly in proportion to their size.^ 



2 Its organs. 



1 Const. Art. 78. Meyer {Lehrbuch, p. 421) and Zorn (Staatsrecht 
des Deutschen Reiches, pp. 88-93) think this provision applies only to the 
limitations on the competence of the Empire, and not to the privileges 
given to the several States in the organization of the government, such 
as the presidential rights of Prussia, the allotment of the votes in the 
Bundesrath, the seats on committees, etc. Their opinion, however, is 
not generally accepted. Laband, vol. i. pp. 110-14 ; Schulze, § 249 ; 
v. Ronne, vol. ii. pp. 43-48. It is universally agreed that an affirmative 
vote in the Bundesrath by the delegate of the State is a sufficient consent 
by that State to a law affecting its privileges so far as the Empire is 
concerned ; but there is a difference of opinion on the question how far 
the ruler of the State is bound, or can be bound, by state law to consult 
his parliament. Laband, vol. i. pp. 114^17 ; Schulze, bk. ii. p. 19 ; 
V. Ronne, vol. ii. pp. 36-43 ; Meyer, p. 422 ; Zorn, pp. 94-98. 

2 In saying this I am speaking only of the political structure of the 
government, and do not mean to touch the philosophical question whether 
the sovereignty has or has not been transferred from the States to the 
Empire. This point has been the subject of elaborate argument, and in 
fact the same juristic questions about the origin and nature of the fed- 
eral government have been discussed in Germany as in the United 
States, (For a reference to these discussions see Laband, vol. i. pp. 30- 
33, 52 et seq., and see especially Jellinek, Die Lehre von den Siaatenver- 
bindunge7i.) Some of the German publicists maintain that the sovereignty 
resides in the Bundesrath, a view which, as Burgess points out in his 



184 GERMANY. 

Its chief organ of government is still the old Diet, re- 
named the Bundesrath or Federal Council, to which 
have been added on one side an Emperor, who is com- 
mander-in-chief of the forces, and represents the Em- 
pire in its relation with foreign powers ; and, on the 
other, an elected chamber, called the Reichstag, created 
for the sake of stimulating national sentiment and 
enlisting popular support as against the local and dy- 
nastic influences which have free play in the Bundes- 
rath. Let us consider each of these organs in detail. 

The Reichstag is elected for five years by direct 
rpj^g universal suffrage and secret ballot.^ The 

Eeiciistag. yoters must be twenty-five years old, and not 
in active military service, paupers, or otherwise disquali- 
Its compo- fied.^ The members are chosen in single elec- 
sition. toral districts fixed by imperial law.^ These 

had originally a hundred thousand inhabitants apiece,* 
but they have not been revised for more than a score 
of years, and with the growth of the large cities have 
gradually become very unequal. In the case of Berhn 
the disproportion is enormous, for the city has now 
nearly two million and a half inhabitants, but is still rep- 

Political Science (vol. ii. pp. 90-93) is somewhat artificial. For those who 
think as I do, that sovereignty is not in its nature indivisible, the question 
loses much of its importance. (Cf. Essays on Government, chapter on the 
Limits of Sovereignty.) 

1 Cf. Laband, § 34 ; Const. Arts. 20, 24. Until 1888 the period was 
three years. 

2 Wahlgesetz, May 31, 1869, §§ 1-3. Every voter who has been a 
citizen of any State for a year is eligible in any district in the Empire 
without regard to residence. Soldiers in active service, though not al- 
lowed to vote, are eligible. (Id., § 4.) 

8 Wahlgesetz, § 6. * Except in the smallest States. 



THE REICHSTAG. 185 

resented by only six members. The government, bow- 
ever, is not anxious for a redistribution of seats, be- 
cause Berlin elects Radicals and Socialists, who form 
a troublesome opposition, — a tendency which is also 
true of other large centres. As in the United States, 
no district can be composed of parts of different States, 
so that every State, however small, elects at least one 
representative. The three hundred and ninety-seven 
seats are in fact distributed as follows : Prussia has 
two hundred and thirty-five, or about three fifths of 
the whole number, Bavaria forty-eight. Saxony twenty- 
three, Wurtemberg seventeen, Alsace-Lorraine fifteen, 
Baden fourteen, Hesse nine, Mecklenburg-Schwerin six, 
Saxe-Weimar three, Oldenburg three, Brunswick three, 
Hamburg three, Saxe-Meiningen two, Saxe-Coburg- 
Gotha two, Anhalt two, and all the rest one each.^ As 
regards the method of election the system of hallotage 
prevails ; that is, an absolute majority is required for 
election on the first ballot, and if no one obtains this, 
a second ballot takes place which is confined to the 
two candidates who have received the largest number 
of votes.^ 

Universal suffrage was looked upon as an experi- 
ment of a somewhat hazardous character, and Payment of 
Bismarck insisted on the non-payment of the '^^'^^®^- 
members of the Reichstag as a safeguard.^ This was 

1 WaWgesetz, § 5 ; Const. Art. 20 ; Act of June 25, 1873 (Alsace- 
Lorraine), § 3. 

2 Wahlgesetz, § 12. Lebon (p. 82) thinks this last provision, by cut- 
ting out all the candidates but the two highest on the list, favors the 
government and hampers the free expression of opinion. 

8 Const. Art. 32. 



186 GERMANY. 

a bone of contention with the Liberals for many years, 
— the Reichstag having repeatedly passed bills for 
the payment of members, which the Bundesrath until 
1906 rejected.^ The absence of remuneration has not 
been without effect, for it has deterred university pro- 
fessors and other men of small means, usually of liberal 
views, from accepting an office which entails the expense 
of a long residence in Berlin, but it has not fulfilled 
the predictions that were made either by its foes or its 
friends, for it has not caused a dearth of candidates, 
or discouraged the presence of men who make poli- 
tics their occupation. The provision has, however, a 
meaning one would hardly suspect. In 1885, when 
the Socialist representatives were paid a salary by their 
own party, Bismarck, claiming that such a proceeding 
was illegal, caused the treasury to sue them for the 
sums of money they had received in this way, and, 
strange to say, the Imperial Court of Appeal sustained 
the suits. The object of withholding pay from the 
members is, of course, to prevent the power of the 
poorer classes from becoming too great ; but a much 
more effectual means to the same end is the habit of 
holding elections on working days, instead of holding 
them on Sundays, as is done in France and most of the 
other Catholic countries. 

1 In 1906 a measure providing for the payment of members was en- 
acted. Since that date a nominal allowance of 3000 marks (about $750) 
per year has been paid, with a reduction of 25 marks for each day's ab- 
sence. The annual allowance is hardly large enough to be termed a 
salary. 



THE REICHSTAG. 187 

The Reichstag has the ordinary privileges of a legis- 
lative assembly, electing its own president, 
making its own rules, and deciding upon the mittee sys- 
validity of elections.^ Its internal organiza- 
tion conforms to the pattern generally followed in con- 
tinental chambers. At the beginning of each session 
the members are divided by lot into seven Ahthei- 
lungen or sections, which correspond to the Bureaux 
of the French Chambers, but differ from these in the 
important respect that they last during the whole 
session, instead of being renewed at short intervals. 
The duties of the sections consist in making a prelimi- 
nary examination of the validity of elections to the 
Reichstag, and in the choice of committees, each section 
electing one or more committee-men, according to the 
importance of the committee.^ As in France and Italy, 
however, the choice by the sections is really cut and dried 
beforehand. It is in fact controlled by the Senioren- 
Convent, a body composed of the leaders of the dif- 
ferent parties, who determine in advance the number 
of seats on the committee to which each party shall 
be entitled.^ Bills are not always referred to a com- 
mittee; but it is noteworthy that the more advanced 
Liberals have constantly urged such a reference in 
the case of government bills, because the authoritative 
influence of the ministers is thereby diminished, and 
greater opportunity is given for criticism and amend- 

1 Const. Art. 27. 

^ Laband, vol. ii. pp. 327-29. Unlike the French Bureaux, their choice 
is not confined to members of their own section. Lebon, p. 88. 
8 Lebon, Ih. • Dupriez, vol. i. p. 526 ; Laband, vol. i. p. 328. 



188 GERMANY. 

ment; while the more moderate parties, following the 
lead of the government, have often preferred an imme- 
diate discussion of important measures by the full 
house, without the intervention of any committee at all. 
The powers of the Reichstag appear very great on 

paper. All laws require its consent, and so 
of the do the budget, all loans, and all treaties which 

involve matters falHng within the domain of 
legislation. It has a right to initiate legislation, to ask 
the government for reports, and to express its opinion 
on the management of affairs.^ In reality, however, 
its powers are not so great as they seem. The consti- 
tution provides, for example, that the budget shall be 
annual,^ but the principal revenue laws are permanent, 
and cannot be changed without the consent of the 
Bundesrath,^ while the most important appropriation, 
that for the army, is virtually determined by the law 
fixing the number of the troops, and this has hitherto 
been voted for a number of years at a time.* The 
chief function of the Reichstag is, in fact, the consid- 
eration of bills prepared by the Chancellor and the 
Bundesrath. These it criticises and amends pretty 
freely ; but its activity is rather negative than positive, 
and although important measures have occasionally 

1 Const. Arts. 6, 11, 23, 69, 73 ; Laband, § 33. 

2 111 1867 Bismarck wanted triennial sessions, and in 1888, when the 
term of the Reichstag was changed to five years, he wanted the sessions 
held only every other year. 

8 It is to be remembered, moreover, that the bulk of the civil adminis- 
tration is in the hands of the States, which provide the means of carrying 
it on. 

4 In 1871, for three years ; in 1874:, 1880, and 1887 for seven years j 
and since 1893 for five years. 



THE REICHSTAG. 189 

been passed at its instigation/ it cannot be said to 
direct the policy of the state either in legislation or 
administration.^ 

The influence of the Reichstag is also diminished 
by the fact that it can be dissolved at any ^pj^^ ^. ^^ ^^ 
time by the Bundesrath with the consent of dissolution. 
the Emperor.^ In most constitutional governments at 
the present day the power of dissolution is the com- 
plement of the responsibility of the ministers, and 
is used, at least in theory, to ascertain whether the 
cabinet possesses the confidence of the nation. But 
in Germany it exists without any such responsibility, 
and hence is simply a means of breaking down re- 
sistance in the Reichstag. It has, indeed, been used 
for this purpose on three memorable occasions : first, 
in 1878, when the Reichstag refused to pass a bill 
for the repression of agitation by the Socialists ; after- 
wards in 1887, when it refused to pass the bill fixing 
the size of the army for seven years ; and again in 1893, 
when it refused to sanction changes proposed in the 
military system. In each case the new Reichstag sup- 
ported the plans of the government, and thus a serious 
conflict with the Chancellor was avoided, and the 

^ A striking example of this was the amendment to Art. 4 of the con- 
stitution extending the competence of the Empire to ordinary civil and 
criminal law. 

2 Cf. Lebon, pp. 113-16. The debate in the budget is used as an 
occasion for criticism of the government, and for the expression of 
opinion, but in the budget itself few changes are made. The reductions 
have little importance, while the rejection of an appropriation asked for 
is extremely rare, and an increase is almost unknown. Dupriez, vol. i. 
pp. 543-44. 

8 Const. Art. 24. 



190 GERMANY. 

question of tlie ultimate authority of the different 
organs of the state was postponed. 

/ The rules of the Reichstag provide for interpella- 
interpeUa- tions, but the questiou to whom these shall 
tions. i^g addressed involves one of the paradoxes, 

or contradictions between theory and practice, which 
are common in the government of the Empire. There 
is no imperial cabinet, and the Chancellor, who is the 
only minister, has no right, as such, to sit in the 
Reichstag. In theory he comes there only as one of 
the delegates to the Bundesrath, — all whose members 
have the privilege of being present in the Reichstag, 
where a special bench is reserved for them. They 
appear as the representatives of the united governments 
of Germany, and are entitled to speak whenever they 
choose ; for the Bundesrath is not only a collection 
of deleo^ates from the jjovernments of the different 
States, but has also some of the attributes of an im- 
perial cabinet. In form, therefore, interpellations are 
addressed to the Bundesrath, but in fact they are com- 
municated to the Chancellor, who usually answers them 
himself, or allows one of his subordinates to do so. A 
debate may ensue if demanded by fifty members, but 
it is not followed by an order of the day expressing 
the opinion of the House,^ and, indeed, interpellations 
have no such importance as in France and Italy, because 
the parhamentary system does not exist ; that is, the 

^ Lebon, p. 105 ; v. Eonne, p. 268. A resolution can, of course, be 
moved in accordance with the ordinary rules of procedure, and tbis was 
done on the occasion of the expulsion of the Poles in Jan., 1886. Blum, 
pp. 498-501. Dupriez (vol. i. p. 545) comments on the Polish incident. 



THE BUNDESRATH. 191 

Chancellor does not resign on an adverse vote of the 
Reichstag, nor does he feel obliged to conform to its 
•wishes. 

Let us now examine more closely the Bundesrath, — 
that extraordinary mixture of legislative cham- rphe Bun- 
ber, executive council, court of appeal, and ^®^^^*^- 
permanent assembly of diplomats. It is the most thor- 
oughly native feature of the German Empire, and has, 
therefore, a peculiar vitality. The Bundesrath is com- 
posed of delegates appointed by the princes ^^ composi- 
of the States and the senates of the Free *"'°* 
Cities ; ^ and it is to be observed that Alsace-Lorraine, 
which was taken from France in 1871, is not strictly a 
member of the union, but only Reichsland or imperial 
territory, and hence has no right to a representative 
in the Bundesrath, although as a part of the empire 
it elects members of the Reichstag. Its position is in 
some ways analogous to that of one of our Territories, 
while the other parts of the Empire correspond to our 
States. Curiously enough, Alsace-Lorraine has been 
allowed since 1879 to send to the Bundesrath dele- 
gates who, like the representatives of the Territories in 
Congress, can debate, but cannot vote.^ 

The seats in the Bundesrath are distributed among 
the States and Cities in such a way that each of them 
is entitled to the same number of votes as in the 

1 Const. Arts. 6-10. 

2 Laband, vol. i. pp. 219-20. In the law of 1879, as originally drawn 
up by Bismarck, Alsace-Lorraine was entitled to ordinary delegates to 
the Bundesrath ; but that body, in order not to increase the seats virtually 
controlled by the King of Prussia, insisted that they should have no vota 
Blum, pp. 635-36. The number of these delegates is four. 



192 GERMANY. 

diet of the old Germanic Confederation when that body 
proceeded in plenum ; except that Bavaria, as part 
of the inducement to join the Empire, was given six 
delegates instead of f our,^ and Prussia obtained those 
of the States she absorbed in 1866.^ 

There are in all fifty-eight members, of which Prussia 
has seventeen, Bavaria six. Saxony and Wurtemberg 
four each, Baden and Hesse three each, Brunswick and 
Mecklenburg-Schwerin two each, and the remaining 
fourteen States and three Free Cities one each. But 
Prussia has really three votes more, because the 
contract for the government of Waldeck already men- 
tioned gave her the vote of that State, and in 1884-85 
she caused the Duke of Cumberland to be excluded 
from the succession in Brunswick, got a Prussian 
prince appointed perpetual regent, and thus obtained 
the virtual control of these two votes also;^ so that 
she has in reality twenty votes out of the fifty-eight. 
This, of course, is much less than her proportion of the 
population -, * but twenty votes in the same hand count 

^ She had six votes in the Bundesrath of the Zollverein from 1866 
to 1871. 

^ Laband, vol. i. p. 220. The votes acquired by Prussia in this way were 
those of Hanover, 4 ; Hesse Cassel, 3 ; Holstein-Lauenburg, 3 ; Nassau, 
2 ; and Frankfort, 1. 

^ The Duke was excluded because as son and heir of the late King of 
Hanover he insisted on his right to that kingdom, and refused to acknow- 
ledge its incorporation in Prussia. His son, who married the Emperor's 
daughter, has recently been restored to the dukedom. 

* The population of Germany on Dec. 1, 1890, was about forty-nine 
millions, of which Prussia had thirty millions, Bavaria five millions and 
a half. Saxony three millions and a half, Wurtemberg two millions, 
Alsace-Lorraine and Baden a million and a half apiece, Hesse one mil- 
lion, and the other nineteen States together four millions. 



THE BUNDESEATH. 193 

far more than the same number held by different 
States, and she has only to win ten additional votes, — 
those of Bavaria and Wurtemberg, for example, or 
those of some of the smaller States, — in order to 
have an absolute majority. In fact, she has usually 
had her way, although on several notable occasions the 
other States have combined and defeated her. This 
happened in 1877, when the seat of the Imperial 
Court of Appeal was fixed at Leipsic instead of Berlin 
as she desired ; ^ and in 1876 on the more important 
question of the imperial railroad law. At that time 
Bismarck refrained altogether from introducing into 
the Bundesrath a bill for the purchase of railroads by 
the Empire, knowing that it would be defeated by the 
opposition of the middle-sized States, although the 
project was one on which he had set his heart.^ 
Again, in 1879, another railroad bill was killed in the 
Bundesrath by the opposition of Bavaria, Saxony, and 
Wurtemberg,^ and in the same year a conference of 
the finance ministers of the States refused to consent 
to the tobacco monopoly.* 

The members of the Bundesrath are diplomats rather 
than senators.^ They enjoy at Berlin the privileges of 
foreign ambassadors, and are appointed and removed 

1 Cf. Blum, pp. 146-47. The vote in favor of Leipsic was thirty to 
twenty-eight ; and it is noteworthy that if Prussia had then controlled 
the votes of Brunswick the majority would have been the other way. 

2 Cf. Blum, pp. 165-68. 

3 Blum, p. 345. 

* Blum, p. 312. On this point, however, they yielded some years later. 

^ The constitution (Art. 10) provides that the Emperor shall vouchsafe 
to them the protection accorded to ambassadors, while the members of 
the Reichstag have the ordinary privileges of members of a parliament. 



194 GERMANY. 

at will by the States they represent, — which also pay 

them or not as they please. The votes they 

the Bundes- cast are the votes of the States, not those 

rath and the „ . , i • • i r» 

position of 01 its representatives, and it is tnereiore pro- 
vided that all the delegates of a State must 
vote alike. In fact, all the votes belonging to a State 
are counted without reference to the number of dele- 
gates actually voting j ^ and thus the seventeen votes 
of Prussia, for example, can be cast in her name by a 
single representative, just as at the meeting of a pri- 
vate corporation a properly authorized agent can vote 
on all the shares of stock belonging to his principal. 
The delegates, moreover, vote according to the instruc- 
tions of their home government, and the constitu- 
tion expressly declares that votes not instructed shall 
not be counted.^ This last provision has given rise to 
some comment. It does not mean that a delegate must 
produce his instructions before he is allowed to vote. 
On the contrary, the Bundesrath appears to take no 
cognizance of instructions, which may, indeed, be of 
any kind, including an authority to vote as the delegate 
thinks best ; and it is even asserted that a vote is valid 
whether it is in accord with the instructions or not.^ 
The provision in the constitution is probably a mere 
survival; but it has been suggested that its object is, 
on the one hand, to allow a delegate to excuse himself 
from voting on the plea that he has not been instructed, 
and on the other to make it clear that a vote can be 
taken, although the delegates have not all received 

1 Laband, vol. i. p. 223. ^ Const. Art. 7. 

2 Laband, vol. i. p. 229. 



THE BUNDESRATH. 195 

their instructions, thus taking away an excuse for delay 
that might otherwise be urged.^ 

A delegate is usually an officer of the State he repre- 
sents, often one of its ministers, or even the head of its 
cabinet, and in any case the ministers of a State are 
responsible according to its own laws for their instruc- 
tions to the delegates.^ In fact, the ministers are fre- 
quently questioned in the local Landtag or legislature, 
about the instructions they have given, or propose to 
give ; and resolutions are sometimes passed in regard to 
them.^ If, indeed, the strict parliamentary system 
existed in any of the German States, the cabinet would 
no doubt be held responsible to the Landtag for these 
instructions as for every other act of the government. 

Although the delegates are frequently officers of 
the State they represent, they are not necessarily even 
citizens of it; and it is not uncommon for several of 
the smaller States, from motives of economy, to em- 
power the same man to act as delegate for them all 
jointly. This habit grew to such an extent that in 
April, 1880, when a stamp act proposed by the 
Chancellor was seriously amended by a vote of thirty 
to twenty-eight, thirteen of the smaller States were not 
represented by any delegates of their own, their votes 
being cast by two delegates from other States. Bis- 
marck tendered his resignation in disgust, and this 

1 Cf . Robinson, " The German Bundesrath," Pub. Univ., Pa. Pub. Law 
Series, vol. iii. no. 1, pp. 34-35. 

2 Laband, vol. i. pp. 225-27. 

8 Interpellations, for example, were presented and answered in several 
States in regard to the proposal for the purchase of railroads by the Em- 
pire, to which allusion has already been made (Blum, p, 167). 



196 GERMANY. 

caused the Bundesrath to reconsider its action and 
vote the tax. But the Chancellor was not satisfied. 
He complained that the practice of substitution de- 
prived the Bundesrath of the presence of members 
who were open to argument, and he insisted on the 
adoption of a rule dividing the session into two periods, 
in one of which the important matters should be 
considered, and delegates from all the States should be 
present, while the other should be devoted to current 
affairs, when the States might appoint substitutes if 
they pleased. This rule was adopted, and for the con- 
venience of the delegates the former period is made as 
short as possible.^ 

The Bundesrath is in its nature unlike any other 
body in the world, and its peculiarities can be ex- 
plained only by a reference to the Diet of the old Ger- 
manic Confederation. It is not an international con- 
ference, because it is part of a constitutional system, 
and has power to enact laws. On the other hand, it is 
not a dehberative assembly, because the delegates vote 
according to instructions from home. It is unlike any 
other legislative chamber, inasmiich as the members do 
not enjoy a fixed tenure of office, and are not free to 
vote according to their personal convictions. Its es- 
sential characteristics are that it represents the govern- 
ments of the States and not their people, and that each 
State is entitled to a certain number of votes which it 
may authorize one or more persons to cast in its name, 
these persons being its agents, whom it may appoint, 
recall, or instruct at any time. The true conception of 

1 Blum, pp. 348-49; Laband, vol. i. pp. 256-57. 



THE BUNDESRATH. 197 

the Bundesrath, therefore, is that of an assembly of 
the sovereigns of the States, who are not, indeed, 
actually present, but appear in the persons of their 
representatives. 

The internal organization of the Bundesrath is in 
accord with its federal character and the The internal 
privileged position of the larger States. We of^h^fun-'' 
have already seen that the seventeen votes ^^^^*^- 
of Prussia are more than enough to defeat any con- 
stitutional amendment, and that she is expressly given 
a veto on all proposals to change the laws relating to 
the army or the taxes. Besides this, the constitution 
declares that the Emperor, that is, the King of Prussia, 
shall appoint the Chancellor, who presides over the 
body and arranges its business, and through whose 
hands all communications from the Reichstag and all 
motions and petitions must pass,^ and who is in fact 
always one of the Prussian delegates.^ But the con- 
stitution goes into much smaller details in regulating 
privileges of the States, and prescribes even Theeom- 
the composition of the committees ; for the °^^**®*^^- 
Germans have shown a remarkable astuteness in this 
matter, and nowhere else in the world can we find 

1 Const. Art. 15. Cf. Eobinson, p. 37. 

2 Most of the German jurists argue that the Chancellor must always be 
a Prussian delegate, because Art. 15 of the constitution implies that he 
must be a member of the Bundesrath, and the Emperor has power to 
create such members only in his capacity as King of Prussia. Laband, 
vol. i, pp. 253-54 ; Meyer, Lehrhuch, § 124 ; Schulze, vol. ii. p. 91, 
Hensel (Die Stellung des Reichskanzlers, pp. 10-12) denies this and quotes 
Bismarck in his favor. The Chancellor is authorized to commit the duty 
of acting as chairman to a substitute, and in fact he rarely presides in 
person. See Dupriez, vol. i. p. 522, and Blum, p. 143. 



198 GERMANY. 

the important influence of committees in a legislative 
body so thoroughly recognized. There are eight stand- 
ing committees of the Bundesrath established by the 
constitution.^ The members of one of these — that 
on the army and fortresses — are appointed by the 
Emperor ; but it is provided by the constitution that 
Bavaria, and by military convention that Saxony and 
Wurtemberg, shall have places upon it. The members 
of the committee on maritime affairs are also appointed 
by the Emperor ; while the committees on taxes and 
customs, on trade, on railroads, posts and telegraphs, 
on justice, and on accounts, are elected every year by 
the Bundesrath itself. On each of the last seven 
committees, five States at least must be represented, 
of which one must always be Prussia, whose member 
is always the chairman. But here again we have an 
illustration of the fact that the Bundesrath is an 
assembly of diplomats and not of senators, for the 
practice followed by the Emperor or the Bundesrath 
— whichever has the power of appointment — is to 
designate the States to be represented, and the dele- 
gation from each of those States chooses one of its 
own members to sit on the committee. The seat on a 
committee belongs, therefore, not to the representative 
selected, but to the State which he represents. There 
is one other committee provided for by the constitu- 
tion, — that on foreign affairs. Its functions are pe- 
culiar ; for it does not report like the other committees, 
but its members listen to the communications made to 
them by the Chancellor, and express the views of their 

1 Const. Art. 8. 



THE BUNDESRATH. 199 

respective governments thereon. It is thus in reality 
a means by which the ministers of the larger States 
may be consulted upon foreign affairs ; and it consists 
of representatives of Bavaria, Saxony, Wurtemberg, 
and two other States designated every year by the 
Bundesrath. As its only function is to consult with 
the Chancellor, who is virtually the Prussian minister 
for foreign affairs, Prussia has no seat upon it, and 
in her absence Bavaria presides.^ 

Another illustration of the federal character of the 
Bundesrath is to be found in the provision oniydeie- 
that on matters not common to the whole |tates°^*^^ 
Empire, — such, for example, as the excise aUoweTtI) 
on beer, from which Bavaria, Wurtemberg, ^***^' 
and Baden enjoy an exemption, — only those States 
which are interested can vote.^ There was at first a 
similar provision for the Reichstag, but it was felt to 
be inconsistent with the spirit of a national house of 
representatives, and was repealed.^ 

The powers of the Bundesrath are very extensive, 
and cover nearly the whole field of govern- 
ment. it is a part or the legislature, and theBundes- 
every law requires its assent.^ But, more 

^ There are also three standing committees not provided for by the 
constitution : those on Alsace-Lorraine, on the constitution, and on rules. 
All the standing committees may sit when the Bundesrath is not in 
session. On the subject of the committees, see Laband, § 31. 

2 Const. Art. 7. 

8 Amend. Feb. 24, 1873. 

* Including treaties that fall within the domain of legislation. Const. 
Art. 11. Each State has the right of initiative (Art. 7), which is, of 
course, most frequently used by Prussia. 



200 GERMANr. 

than this, it has the first and last word on almost all 
the laws, for the Reichstag has not succeeded 
in making its right of initiative in legislation 
v^ery effective, and by far the larger part of the statutes 
(as well as the budget) are prepared and first discussed 
by the Bundesrath. They are then sent to the Reich- 
stag, and if passed by that body, are again submitted 
to the Bundesrath for approval before they are pro- 
mulgated by the Emperor.^ The Bundesrath may 
therefore be said to be not only a part of the legisla- 
ture, but the main source of legislation. 

It is also a part of the executive. As such, it has 
power to make regulations for the conduct 
of the administration, and to issue ordinances 
for the completion of the laws, so far as this power has 
not been specially lodged by statute in other hands.^ 
In regard to finance its authority is even more exten- 
sive, for it has been given many of the functions of a 
chamber of accounts.^ It enjoys a share of the power 
of appointment, for it nominates among other of&cials 
the judges of the Imperial Court, and elects the mem- 
bers of the Court of Accounts ; while collectors of 

1 Laband, vol. i. p. 542 ; Schulze, vol. ii. p. 118. 

2 Const. Art. 7. It exercises this power with great freedom. Robin- 
son, pp. 50-53. There is some difference of opinion how far this power 
extends. Laband, vol. i. pp. 236-37 ; v. Roune, vol. i. pp. 213-15 ; Arndt, 
pp. 115-19. Arndt has also published a treatise on this subject. Das 
Verordnungsrecht des Deutschen Reiches. It is also empowered to decide 
upon defects that appear in the execution of the laws. Const. Art. 7, § 3. 
The meaning of this clause has been much discussed. Laband, vol. i. 
pp. 238-42, 246 ; v. Ronne, vol. i. pp. 215-16 ; Arndt, Verfassung dei 
Deutschen Reiches, p. 119 ; Robinson, pp. 66-59. 

3 Laband, vol. i. pp. 244-46. 



THE BUNDESRATH. 201 

taxes and consuls can be appointed only with tlie 
approbation of its committees.^ Under this head of 
executive power must also be classed the provisions by 
which its consent is required for a declaration of war,^ 
for a dissolution of the Eeichstag,^ and for federal 
execution against a refractory State.* The Bundesrath, 
moreover, acts in some ways like a ministry of state, 
for it designates one or more of its members to support 
in the Eeichstag the measures it has approved ; and in 
fact a practice has grown up of informing the Reich- 
stag during the progress of a debate what amendments 
to a bill the Bundesrath is willing to accept.^ But 
the federal nature of the Bundesrath comes into play 
again curiously here, for each of the members also 
represents in the Reichstag his particular government, 
and can express its views, although contrary to those 
of a majority of his colleagues.^ 

The Bundesrath has no little power of a judicial 
or semi-judicial nature. It decides disputes 

, , . '11 Judicial. 

between the imperial and state governments 
about the interpretation of imperial statutes.' It is 
virtually a court of appeal in cases where there is a 
denial of justice by a state court .^ It decides contro- 
versies between States, which are not of the nature 

1 Laband, vol. i. pp. 242-43. 

2 Except on the ground that an attack has been made on the territory 
of the Empire. Const. Art. 11. 

3 Const. Art. 24. 
* Const. Art. 19. 

^ Laband, vol. i. p. 537, n. 5. 

6 Const. Art. 9. 

' This is deduced from Const. Art. 7, § 3. See page 268, note 2, supra, 

8 Art. 77. 



202 GERMANY. 

of private law, if appealed to by one of the parties ; ^ 
and, finally, when a constitutional question arises in a 
State which has no tribunal empowered to decide it, 
the Bundesrath must try to settle it by mediation if 
requested to do so by one of the parties, or if this fails, 
it must try to dispose of the matter by imperial legis- 
lation.^ 

The Bundesrath has not only far more extensive 
s eciai powcrs than the Reichstag, but it has also 
thi^Sfnlei certain privileges that enhance its prestige 
^**'^' and increase its authority. Thus the Reich- 

stag cannot be summoned to meet without the Bundes- 
rath, whereas the latter can sit alone, and must in fact 
be called together at any time on the request of one 
third of its members.^ Unlike the Reichstag, moreover, 
the order of business in the Bundesrath is not broken 
off by the ending of the session, but is continuous, so 
that matters are taken up again at the point where 
they were left, and thus its work is made far more 
Privacy of effcctive.* The most important privilege it 
meetings. eujoys, howevcr, is that of excluding the 
public from its meetings.^ This has given it the 

^ Const. Alt. 76. If unfitted to decide the question, it can substitute 
for itself some other body, and this it did in 1877 in the case of the con- 
troversy between Prussia and Saxony in regard to the Berlin-Dresden 
railroad, selecting the Court of Appeal of Liibeck. Laband, vol. i. p. 249, 
note 2. 

2 Const. Art. 76, § 2. 

8 Const. Arts. 13-14. 

* Laband, vol. i. p. 253. 

^ The constitution does not provide whether the sessions shall be public 
or not, and in fact they have always been secret (v. Ronne, vol. i. pp. 
210-11). A brief report of the matters dealt with and the conclusions 



THE BUNDESRATH. 203 

advantage of concealing* to some extent its internal 
differences, and has enabled it to acquire a reputation 
for greater unanimity, and consequently to exert more 
influence than it would otherwise possess. Privacy, 
indeed, would seem to be almost as essential to the 
Bundesrath, as to the cabinet in a parliamentary gov- 
ernment, or to an Anglo-Saxon jury. It is easy to 
perceive that the twelve jurors would seldom agree, if 
the public were allowed to witness the mysterious 
process of reaching a verdict ; and it is equally clear 
that harmony in the Bundesrath would be very seriously 
imperiled, if its galleries were filled with spectators. 
One can imagine how the newspapers would gloat over 
the last altercation between the Chancellor and the 
representative of Bavaria or Saxony, and how hard it 
would be for the contending parties to make the con- 
cessions necessary to effect an agreement after their 
differences had been discussed in public. The work 
of the Bundesrath must be an unendino- series of 
compromises, and a compromise is a thing with which 
the world at large has little sympathy. If, therefore, 
the meetings of the Bundesrath were open, it would 
be a hotbed of dissensions between the governments 
of the different States, instead of a bond of union and 
a means of mutual understanding. 

In regard to the power and influence actually 
wielded by the Bundesrath, the most contradictory state- 
reached is given to the press after each session, but the Bundesrath can 
vote to withhold from the public all information about any matter, and 
the rules provide that the oral proceedings both in the Bundesrath and 
its committees shall be kept secret in all cases. Laband, vol. i. p. 259. 



204 GERMANY. 

ments are made. It is said on the one hand to be the 
Actual in- most important body in the Empire/ and on 
?he Bundes- t^^ other that it is a mere nulHty which 
^** ■ moves almost entirely at the dictation of 

Prussia.^ Both these statements are largely true, for 
considered as an independent council with a will of 
its own the Bundesrath is a nullity, because it derives 
its impulse exclusively from outside forces ; but, con- 
sidered as an instrument by means of which the 
governments of the larger States, and especially of 
Prussia, rule the nation, it is probably the most im- 
portant, although the least conspicuous, organ in the 
Empire. The extent of Prussia's authority in the 
Bundesrath cannot be accurately determined, owing to 
the secrecy of the proceedings. That her will, or rather 
the will of the Chancellor acting in her name, is the 
chief moving and directing force, is evident ; but that 
he is not influenced by the opinions of the other States, 
that he does not modify his plans in consequence of 
their objections, or make compromises with them on 
contested points, it seems hazardous to assert. The 
members are usually wise enough not to talk about 
their differences in public, and hence these are only 
partly known to the world. At one time the minister 
of Wurtemberg complained openly in the Reichstag 
that bills were presented to the Bundesrath drawn up 
in a complete form by Prussian officials, and filled 
exclusively with a Prussian spirit ; ^ but we know that 

1 Robinson, p. 43. 

2 Lebon, pp. 145-51 ; Dupriez, vol. i. pp. 478, 51Z-23. 
8 See Blum, p. 140. 



THE EMPEROR. 205 

this has not always been the case, and that important 
measures have frequently been considered and discussed 
by the ministers of all the larger States before they 
were introduced at all.^ We know also that in more 
than one instance Bismarck found it impossible to per- 
suade the Bundesrath to adopt his views/ and that 
on another occasion he thought a threat of resigna- 
tion necessary to compel submission.^ In this case 
the threat produced the desired result, but it may well 
be doubted whether it would have the same effect in 
the mouth of any one but the Iron Chancellor, whose 
strong will dominated also the Reichstag and the 
throne.* 

We now come to the Emperor.^ The title seems to 
denote an hereditary sovereign of the Empire, rj.^^^ ^^_ 
but from a strictly legal point of view this is ^®^°^" 
not his position. He is simply the King of Prussia, 
and he enjoys his imperial prerogatives by virtue of 
his royal office. There is, in fact, no imperial crown, 
and the right to have her King bear the title, and 
exercise the functions of Emperor, is really one of the 
special privileges of Prussia. The language of the 
constitution is: "The presidency of the union belongs 

1 This was notably true in the case of the Gerichtsverfassunggesetz in 
1873 (Blum, p. 141). 

2 See page 261, supra. 

8 See pages 263-64, supra. 

* Lebon (p. 147) thinks that Prussia has a good deal of influence in 
the appointment of delegates by the other States, and refers to the case 
where Bismarck procured the recall of the Bavarian representative in 
1880. 

« Cf. Const. Arts. 11-19. 

VOL, I. 



206 GERMANY. 

to the King of Prussia, who bears the title of German 
Emperor." The succession is therefore determined 
solely by the law of the Prussian Royal House, and in 
case of incapacity the Regent of Prussia would, ipso 
facto, exercise the functions of Emperor.^ 

It has been said that as commander-in-chief of the 
His power army and navy the Emperor has in theory 
^Spira- til® personal direction of mihtary matters, but 

tivelysmaU; ^j^^^ ^^ ^^ ^^^^^^ j^^ ^^^^ ^^ ^^^ delegate of 

the confederated governments, under the direction of 
the Bundesrath;^ and even if this statement is not 
strictly accurate, it gives a very fair idea of his prerog- 
atives. He has charge of foreign affairs, makes trea- 
ties subject to the Hmitations already mentioned, and 
represents the Empire in its relation to other countries, 
to the States, or to individuals. He declares war with 
the consent of the Bundesrath, and carries out federal 
execution against a State when it has been ordered by 
that body. He summons and adjourns the Chambers, 
and closes their sessions, and with the consent of the 
Bundesrath he can dissolve the Reichstag. He pro- 
mulgates the laws, and executes them so far as their 
administration is in the hands of the Empire, subject, 
however, to the important qualification that most of 
the administrative regulations are made by the Bundes- 
rath. He appoints the Chancellor and all other offi- 
cers, except in cases where the Bundesrath has been 
given the right of appointment or confirmation ; but it 
must be remembered that the laws are mainly adminis- 
tered by the state governments under federal super- 

1 Laband, vol. i. pp. 202-4. ^ Lebon, pp. 154-65. 



THE EMPEROR. 207 

vision, and hence there are comparatively few federal 
officials to appoint. In short, the executive power of 
the central government is very Hmited ; and even that 
limited power is shared by the Bundesrath. 

The Emperor has, therefore, very little power as such, 
except in military and foreign matters. His ^^^^ ^ ^^^ 
authority as Emperor, however, is vigorously f/ifyery* 
supplemented by his functions as King of ^^**' 
Prussia. Thus as Emperor he has no initiative in 
legislation ; * and indeed he is not represented in the 
Reichstag at all ; for the Chancellor, strictly speaking, 
appears there only as a member of the Bundesrath.^ 
But as King of Prussia the Emperor has a complete 
initiative by means of the Prussian delegates to the 
Bundesrath whom he appoints. As Emperor he has 
no veto, but as King he has a very extensive veto, — 
for it will be remembered that the negative vote of 
Prussia in the Bundesrath is sufficient to defeat any 
amendment to the constitution, or any proposal to 
change the laws relating to the army, the navy, or the 
taxes. His functions as Emperor and as The two sets 
King are, indeed, so interwoven that it is strangely"^ 
very difficult to distinguish them. As Em- '''''''^^^'''■ 
peror he has supreme command of the army and 
appoints the highest officers. As King of Prussia he 

^ Laband, vol. i. p. 637. Strictly speaking, the initiative in the 
Bundesrath belongs to the States, and in the Reichstag it is confined to 
the members. Laband, vol. i. p. 534. 

2 C£. Lebon, pp. 155-56 ; Dupriez, vol. i. p. 534. If, as the German 
jurists maintain, the Chancellor's right to preside in the Bundesrath 
depends on his being a Prussian delegate, the Emperor, as such, is not 
represented in the Bundesrath at all. See p. 265, n. 2, supra. 



208 GERMANY. 

appoints the lower officers, and has the general man- 
agement of the troops over most of Germany. As 
Emperor he instructs the Chancellor to prepare a bill. 
As Kino- he instructs him to introduce it into the 
Bundesrath, and directs how one third of the votes of 
that body shall be cast. Then the bill is laid before 
the Reichstag in his name as Emperor,^ and as King 
he directs the Chancellor what amendments to accept 
on behalf of the Bundesrath, or rather in behalf of the 
Prussian delegation there. After the bill has been 
passed and become a law, he promulgates it as Em- 
peror, and in most cases administers it in Prussia as 
King ; and finally as Emperor he supervises his own 
administration as King. This state of things is by no 
means so confusing to the Germans as might be sup- 
posed ; for it is not really a case of one man holding 
two distinct offices, but of the addition of certain im- 
perial functions to the prerogatives of the King of 
Prussia. The administration of the country is vested 
in the sovereigns of the States, among whom the King 
of Prussia is ex officio president; and until one has 
thoroughly mastered this idea, it is impossible to under- 
stand the government of Germany.^ 

There is no imperial cabinet, and the only federal 
The Chan- minister is the Chancellor, who has subordi- 
oniy federal natcs but no colleagues.^ The reason for 
minister. ^j^-^ -^ ^^ jj^^ fouud partly in Bismarck's per- 

1 Const. Art. 16. 

2 Schulze (Preussen, in Marquardsen, pp. 33-34) retnarks that the two 
offices are so closely bound together that it is impossible to think of 
tiiem separately. 

• Labaud, vol. i. p. 348 ; and see § 40. 



THE CHANCELLOR 209 

Bonal peculiarities, and partly in the nature of the 
ties that bind Prussia to the Empire. In the first place, 
Bismarck preferred to stand alone, and did not want 
to be hampered by associates. He had had experience 
enough of the Prussian cabinet, where each of the 
ministers was very independent in the management of 
his own department, and he did not care to create for 
himself a similar situation in imperial matters. After 
he had decided on a course of action, he hated, as he 
said, to waste his time and strength in persuading his 
colleagues, and all their friends and advisers, that his 
pohcy was a wise one. Hence he would not hear of 
an imperial cabinet.^ In the second place, he did not 
originally intend to have any federal ministers at all. 
According to his plan the general supervision and con- 
trol of the administration was to be exercised by the 
Bundesrath, while those matters — such as military 
and foreign affairs — which from their nature must be 
intrusted to a single man, were to be conducted by the 
King of Prussia as President of the Confederation, all 
others being left in the hands of the several States. 
The Chancellor was to be a purely Prussian officer, who 
should receive his instructions from the King, and be 
responsible to him alone.^ This plan is very interest- 
ing, because, although in form it was not accepted, in 
substance it presents an almost exact picture of the 
real political situation, except that the power of the 
Prussian King has become greater than was at first 

^ Cherbuliez, UAllemagne Politique, 2d ed., pp. 228-29. Meyer, in his 
Grundziige des Norddeutschen Bundesrechts (pp. 88-97), discusses Bis- 
marck's objections to a collegiate ministry. 

2 Lebon, p. 152. 



210 GERMANY. 

intended.^ The Liberals objected to it, and under 
the lead of Bennigsen the constituent Reichstag 
amended the draft of the consti:;ution, by providing 
that the acts of the President^ should be countersigned 
by the Chancellor, who thereby assumed responsibility 
for them, — thus making the Chancellor a federal offi- 
cer responsible to the nation.^ The principle was 
excellent, but has remained unfruitful; for 
politically the Chauccllor is not responsible criminally, 
to the and Bismarck refused to hold himself polit- 

ically responsible to any one but the monarch. 
He always insisted that the motto " The King reigns 
but does not govern " had no application to the House 
of HohenzoUern. In short, the parliamentary system 
does not exist in the Empire, and the Chancellor is not 
forced to resign on a hostile vote in the Reichstag. If 
that body will not pass one of his measures, he gets 
on as well as he can without it ; or, if he considers the 
matter of vital importance, he causes the Reichstag to 
be dissolved and takes the chance of a new election, 
a course which up to this time has always been crowned 
with success.^ 

1 It is a striking fact that the high imperial officials are almost always 
selected from among the Prussian functionaries. Lebon, p. 157. 

2 This was in 1867, before the King of Prussia was given the title of 
Emperor. 

8 Const. Art. 17. Unlike matters of military administration, the acts 
of the Emperor as commander-in-chief of the army are not treated as 
requiring a countersignature. Schulze, Lehrbuch, p. 93. 

* I do not mean that no imperial official has ever been driven from 
office by the Reichstag. The fall of a minister may be occasionally 
brought about by the opposition of a popular chamber, although there 
is no general cabinet responsibility. 



THE CHANCELLOR. 211 

The Chancellor is at the head of the whole body of 
federal officials. Besides this he presides in j^ ^^^_ 
the Bundesrath, and is, in fact, its leading *'°'^- 
and moving spirit. He also takes an active part in 
the debates in the Reichstag, where he is the chief 
representative of the policy of the government. But 
like his royal master he has a double nature, and his 
functions are partly imperial and partly Prussian. 
As Chancellor appointed by the Emperor he is at the 
head of the national administration, and presides in 
the Bundesrath; but it is as Prussian delegate that 
he votes in that body, and indeed his influence there 
is mainly due to the fact that he speaks in the name 
of Prussia, and casts as he chooses the twenty votes 
which she controls. In the Reichstag, on the other 
hand, he nominally appears as commissioner for the 
Bundesrath or as one of its Prussian members, while 
his importance is really due to his position as chief 
of the federal government. 

It is obviously essential to the Chancellor's position 
that he should be the leader of Prussia's delegation 
in the Bundesrath, and should be able to direct her 
imperial policy. For this reason the Chancellor, ex- 
cept for short intermissions, has been also the president 
of the Prussian cabinet ; and in fact the policy of com- 
bining the two offices may now be looked upon as 
permanent. 

The powers of the German Chancellor in Bismarck's 
day were greater than those of any other Hissubsti- 
man in the world, and his work and respon- *^*®^' 
sibilities were heavier than even his iron frame could 



212 GERMANY. 

bear. In order, therefore, to relieve liim in part, an 
act was passed in 1878 providing for the appointment 
by the Emperor of substitutes, whenever the Chan- 
cellor should declare himself prevented from doing 
his work. These offices were expected at first to be 
temporary, especially that of Vice-Chancellor, or gen- 
eral substitute, who was intended to act only during 
the illness of the Chancellor 5 but with the increase of 
business they have become a permanent necessity, the 
Chancellor declaring that he is prevented from doing 
his work by the fact that he has too much of it to do. 
For many years there has been a Vice-Chancellor con- 
tinuously, and it has been the habit to make as many 
of the Secretaries of State as possible special substi- 
tutes for their own departments,^ appointing them at 
the same time Prussian delegates to the Bundesrath, in 
order that they may be able to speak both in that 
body and in the Reichstag.^ The substitutes counter- 
sign the acts of the Emperor in the Chancellor's stead, 
but are nevertheless subject to his orders, and thus he 
still remains sole head of the government, and is mor- 
ally responsible for its whole poHcy.^ 

^ Dupriez, vol. i. pp. 495-97. The substitution can be made only for 
those matters which the Empire administers directly. Dupriez, Ih. j La- 
band, vol. i. p. 358. 

2 Dupriez, vol. i. p. 522. 

8 Laband, vol, i. p. 359 ; Dupriez, vol. i. pp. 497-99. The federal 
administration began in a very simple form, for there was only one chan- 
cery office (^Bundeskanzleramt), divided into three sections, the Prussian 
officials doing in some departments a good deal of federal work. But as 
the number of affairs to be attended to has grown, the federal machinery 
has become more elaborate. The general chancery office has disap- 
peared, and there are now many separate departments, each with a secre- 



THE COURTS OF LAW. 213 

The judicial branch of the imperial government 
remains to be considered. Justice is admin- q^j^^ .^^^.^ 
istered in the first instance by the state ^^^^^' 
courts ; but curiously enough, the organization of 
these courts is regulated by imperial statutes.^ Their 
rules of practice are also derived from the same source, 
for the federal government has enacted general codes 
of civil and criminal procedure, which apply to the 
state tribunals.^ It has, moreover, enacted a univer- 
sal criminal code and a commercial code, and has just 
added to these a general code of civil law; so that 
there are in each State a similar series of courts or- 
ganized on an imperial plan and expounding imperial 
laws in accordance with imperial forms of procedure, 
but whose members are appointed by the local sov- 
ereign and render their decisions in his name. 

Apart from administrative and consular courts, there 
is only one federal tribunal, called the Reichs- rj^^ Reichs- 
gericht, or Court of the Empire. It has ^®"'^^*- 
original jurisdiction in cases of treason against the 
Empire, and appellate jurisdiction from the federal 
consular courts, and from the state courts on questions 
of imperial law.^ It is to be observed, therefore, that 

tary of state, or president of a bureau, at its head. Such are the Interior, 
Foreign Affairs, Navy, Post Office, Justice, Treasury, Railroads, Invalid 
Funds, Debt Commission, and Imperial Bank. Laband, § 41. 

1 The Gerichtsverfassunggesetz of Jan. 27, 1877. Laband, § 86, and see 
f 81. This is true only of the ordinary courts of law, the subject of 
administrative courts being left for the most part in the discretion of the 
several States. See Laband, vol. ii. p. 368. 

2 The Civilprozessordnung of Jan. 30, 1877. The Strafprozessordnung 
of Feb. 1, 1877. 

8 Laband, § 84 



214 GERMANY. 

■with the completion of the system of national codes 
this year, the imperial tribunal has become a general 
court of error in all cases arising under the ordinary 
civil or criminal law.^ 

While speaking of the judicial branch of the govern- 
Powerof nient, it is interesting to notice that there 
tohoiX*^ has been a great deal of discussion among 
unconsti- German pubhcists over the question whether 
tutionai. ^ court of law can inquire into the constitu- 
tionality of a statute. Some writers maintain that it 
can do so/ while others insist that the promulgation by 
the Emperor settles conclusively the validity of a law.^ 
The problem is not, of course, confined to the Empire, 
but may arise in the States whenever a legislature 
passes a law that violates the state constitution ; the 
solution depending ultimately on the question whether 

1 A State wliicli has several courts of error can create a supreme court 
of appeal and confer upon it the appellate civil jurisdiction of the 
Reichsgericht, but this has been done by Bavaria alone. Laband, vol. 
ii. pp. 365-66. 

2 v. Ronne, vol. ii. pp. 62-63. This was maintained as a general principle 
by Robert von Mohl, in his Staatsrecht, Volkerrecht u. Politik (1860), I. 3. 

^ E. g. Laband, vol. i. pp. 551-58 ; Zorn, Staatsrecht des Deutschen 
Reiches, § 7, iii. Gneist, who is commonly cited in favor of the authority 
of the court, came to the conclusion, in his Soil der Richter auch uber die 
Frage zu hefinden Tidben, ob ein Gesetz verfassungsmdssig zu Stande gekom- 
men, that the courts can decide whether an ordinance issued by the 
executive is within its constitutional powers, and whether a law has 
received the assent of the chambers as required by the constitution, but 
that they cannot inquire whether the substance of a law passed in 
proper form violates the provisions of that instrument. 

The constitution of Prussia declares expressly (Art. 106) that statutes 
and ordinances are binding if promulgated in the form prescribed by law, 
and that the legality of royal ordinances regularly issued can be examined 
only by the chambers. 



UNCONSTITUTIONAL LAWS. 215 

the constitution shall be treated as a law of superior 
obligation, or whether it shall be regarded merely as 
establishing a rule for the guidance of the legislator. 

The matter, however, is one in which practice is far 
more important than abstract theory, and it is certain 
that the courts have not in fact exercised any general 
power of refusing to apply statutes on constitutional 
grounds. The late Brinton Coxe, in his compilation 
on " Judicial Power and Unconstitutional Legislation," 
has collected the most important German cases on the 
subject.^ In one of these the Hanseatic Court of 
Appeal held in 1875 that a statute enacted in Bremen, 
which deprived a person of property without compen- 
sation, was in conflict with the constitution of the city, 
and that the court must regard the latter as a binding 
law and refuse to apply the statute.^ Eight years later 
the doctrine of this case was expressly overruled by 
the federal court in another suit that arose in Bremen 
upon a similar state of facts, the court declaring that 
the constitutional provision was to be understood only 
as a rule for the legislative power to interpret.^ Since 
that time no German tribunal appears to have held a 
statute unconstitutional, but in 1889 the federal court 
remarked, in the course of an opinion, that the question 
whether the judiciary had a right to examine the con- 
stitutionality of an imperial law was still an open one, 
although the weight of authority was in the affirmative.* 

1 Ch. ix. 

2 Gabade v. Bremen, Seuff, Arch., vol. xxxii. No. 101. 

* K. and Others v. Dyke Board of Niedervieland, Dec. of the Reicha- 
gericht, vol. ix. p. 233. 
4 Dec. of the Reichsgericht, vol. xxiv. p. 3. 



216 GERMANY. 

As the question is the same for imperial and state laws, 
the remark would seem to imply a change of opinion on 
the part of the court. It is not at all hkely, however, 
that the Reichsgericht will have the courage of its con- 
victions, and venture to disregard statutes passed by 
the legislature of the Empire. 

Even in a federal system such a power could be 
effectively used only where the central government was 
exceedingly weak,^ or where the authority of the courts 
had been raised to a pitch Hke that which it has ac- 
quired in Anglo-Saxon countries from the prolonged 
judicial centraHzation of England. It would, indeed, 
seem absurd to draw a distinction between public and 
private law, as is commonly done in Germany, and deny 
to the courts the right to consider the legality of an 
administrative ordinance on the ground that it falls 
into the province of public law, and at the same time 
give them power to pass on the validity of a statute 
enacted by the legislature. 

To sum up what has been said, the German Empire 
Character of ^^ ^ federal government of a peculiar type, in 
fedeJaiTy"^- which legislative centralization is combined 
*®™' with administrative decentralization. The 

centre of gravity is to be found in the body repre- 
senting the governments of the several States, and 
here Prussia has a controlling influence, and a veto 
on the most important matters. In fact, the Con- 
federation is not a union of States with equal rights, 
but rather an association of privileged members, so 

1 That the courts cannot exercise such a power in a centralized State, 
see the writer's Essays on Government, pp. 40-45. 



SYNOPSIS OF THE SYSTEM. 217 

contrived that Prussia has the general management, 
subject only to a limited restraint by her associates. 
And herein there is a marked contrast between the 
American and German federal systems. That of the 
United States is based on the equality of the members ; 
and a decided preponderance on the part of any one 
State would destroy the character of the union. That 
of Germany, on the contrary, is organized on a plan 
that can work successfully only in case one member 
is strong enough to take the lead, and keep the main 
guidance in its own hands ;^ for if the States were 
nearly equal, their mutual jealousy would effectually 
prevent the sovereign of any one of them from infus- 
ing a real vitality into the office of Emperor, while the 
control of the Bundesrath over the administration 
would paralyze the executive unless that body derived 
its impulse from a single source. 

1 Cf. Dupriez, vol. i. pp. 475-77, 



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